Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32177
Docket No. CL-32099
97-3-94-3-498
The Third Division consisted
of
the regular members and in addition Referee
James E. Yost when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Illinois Central Railroad
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Organization (GL-11091) that:
(1) Carrier violated the effective Agreement Rule 8, among others,
when it failed to recall Clerk D. Mote to service on a Guaranteed
Extra Board position at Mattoon, Illinois, which was bulletined
under date
of
April 24, 1992, and for which no applications were
received;
(2) Carrier shall now compensate Claimant Mote one day's pay at the
appropriate rate for May 8, 1992, and for each and every day
thereafter until the violation is corrected."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 32177
Page 2 Docket No. CL-32099
97-3-94-3-498
On April 24, 1992, the Carrier issued Bulletin No. 67 advertising a position of
Guaranteed Extra Operator/TCS Clerk with headquarters at Mattoon, Illinois.
Receiving no applications for the position during the ten day period of the Bulletin, the
Carrier on May 8, 1992 issued a Bulletin canceling Bulletin No. 67 in its entirety account
no bids received.
Also on May 8, 1992 the Carrier issued Bulletin No. 76, again advertising a
position of Guaranteed Extra Operator/tCS Clerk headquartered at Mattoon, Illinois.
On May 18, 1992, the Carrier issued a Bulletin awarding the position to J. L. Dhom.
The Organization filed claim on May 12, 1992 on behalf of D. .Mote, an extra
employee at Centralia, Illinois, (the nearest location to the vacant position) asserting that
Claimant stood to be assigned under Rule 8(e) reading in pertinent part:
"(e) When a bulletined new position or vacancy is not bid in or assigned
to an employee in service, the company shall fdl the vacant position
by recalling in seniority order the qualified furloughed employee at
the location involved. Failing to fill the vacancy in this manner, the
company may exercise the following options to fill the vacancy:
a) Assign the junior qualified extra employee in reverse
seniority order at the location involved. For this purpose, all
employees will be considered as extra employees at the
location who have designated the location under the
provisions of Rule 9 (d) (1) or Rule 15(g), in addition to those
headquartered at this location.
b) Hire a new employee.
c) Assign the senior qualified furloughed employee(s) in
seniority order at the nearest location in the seniority district
to the location where the vacancy exists.
d) Assign the junior qualified extra employee(s) in reverse
seniority order at the nearest location in the seniority
district."
Form 1 Award No. 32177
Page 3 Docket No. CL-32099
97-3-94-3-498
The Carrier responded to the claim pointing out that under paragraph (e) when
no bids are received, the vacant position is to be fined by recalling qualified furloughed
employees at the location, and there were none. Further, the Claimant was not
furloughed, nor was she headquarters at Mattoon, Illinois.
The Carrier then asserts that the balance
of
Rule 8(e) paragraphs (a), (b), (c) and
(d) are optional, and it chose not to use those options to fill the position.
The Organization argues that in instances where no bids are received, the Carrier
has the option
of
deciding under which provision it will fill the position, i.e., (a), (b), (c)
or (d), but that it does not have the option
of
setting aside those provisions and
rebulletining the position.
The Carrier argues that its procedure in rebulletining the position where no bids
were received on the original Bulletin is no different from past applications. This
argument appears to be supported by the following statement made in its letter
of July
20, 1992 to the Organization reading:
"The position was rebulletined on May 8, 1992, and, as often happened in
the past, when a vacancy is rebulletined due to no qualified bidders, the
`rebufetined' vacancy is bid on and awarded."
This is so because a search
of
the record before the Board does not reveal that the
Organization took issue with the Carrier's statement..
The Board concludes that the provisions
of
Rule 8(e) reading:
"Failing to fill the vacancy in this manner, the company may exercise the
following options to fill the vacancy." (Emphasis added)
does not mandate the Carrier to use one of the options set forth in paragraphs (a), (b),
(c) and (d) to fill a position left vacant because it could not be fined under 8(e). The
word may is not mandatory. Past practice as discussed above, supports this conclusion.
The Board is bound by the terms of the Agreement and is duty bound to find and
give effect to the intent of the negotiators of the Agreement. To this end we find that
Form 1 Award No. 32177
Page 4 Docket No. CL-32099
97-3-94-3-498
past practice (as discussed above) reveals the intent of the Agreement. The Carrier may
exercise one of the Agreement options, or it may chose to rebulletin.
The Agreement was not violated by the Carrier's election to rebulletin the
position rather than exercise other options available to it.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Ciaimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 13th day of August 1997.