Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32474
Docket No. CL-31056
98-3-92-3-925
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Delaware & Hudson Railway Company, Inc.
STATEMENT OF CLAIM:
"Claim
of
the System Committee of the TCU (GL-10901) that:
I. On behalf of Claimant J. E. Lanzone (92-DHO10).
(a) I hereby claim one day's pay at time and one-half rate of pay
(Clerk's rate $13.64) account not being called to cover position 63 -
Customer Service Clerk at 1500 hours on February 7, 1992.
(b) I was available for said position and was not called. Junior
employe was used at overtime rate.
EL The following claim is hereby presented to the Company in
behalf
of
Claimant D. Rabidesu (92-DH016).
(a) The Carrier violated the Clerks' Rules Agreement effective
September 24, 1990, particularly Rules 4, 5 and other rules, when
it failed to call and work Claimant Rabidesu for Customer Service
Clerk positions, tours) of duty 7:00 A.M. and/or 8:00 A.M., located
at CATS Department, Clifton Park, New York, on February 9,
1992, and instead assigned and permitted Clerks B. McManus and
D. Gilcrist to work the aforementioned positions, respectively, on
that day, at the overtime rate of pay.
Form 1 Award No. 32474
Page 2 Docket No. CL-31056
98-3-92-3-925
(b) That Claimant Rabideau now be allowed eight (8) hours pay
based on the pro-rata hourly rate
of
$13.64 for February 9, 1992, on
account
of
this violation.
(c) Claimant is qualified, was available at the straight time rate
and should have been called and worked in accordance with Rules
4 and 5.
(d) This claim has been presented in accordance with Rule 28-2
and should be allowed."
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.
Before we turn our attention to the merits of the two claims presented herein, we
note that we reviewed the Carrier's various procedural arguments and find them to be
without merit.
The first claim arose when Claimant Lanzone, who was the incumbent of Relief
Customer Service Clerk Position No. 65, was not called to work Customer Service Clerk
Position No. 63 on Friday, February 7, 1992 from 3:00 P.M. to 11:00 P.M. at Clifton
Park, New York, and instead a junior employee was used to fill the vacancy at the
overtime rate.
The facts are clear that on the day in question Claimant should have been called
because he was available and qualified to fill the vacancy.
Form 1 Award No. 32474
Page 3 Docket No. CL-31056
98-3-92-3-925
The second claim arose when Claimant Rabideau, who was the senior "spare"
Clerk, was not called to fill a Customer Service Clerk vacancy at the pro rata rate on
Sunday, February 9, 1992 at Clifton Park, New York. Instead the vacancy was filled
by two regularly assigned Clerks working at the overtime rate.
The argument revolves around whether Claimant Rabidesu was available to be
used at the pro rata rate on the day in question. That question is answered in the
affirmative.
The Carrier violated the Agreement in both instances. Therefore, we will sustain
each claim for eight hours at the pro rata rate.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 23rd day
of
February 1998.