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.
The Organization submitted a claim seeking a total of 40 hours straight time and nine hours of overtime on behalf of Florence-Savannah Seniority District Group D - Drawbridge Operators arguing that Carrier violated the Agreement when it used a BMWE Carpenter assigned to the Jackson-Campus Seniority District to operate a drawbridge on the Florence-Savannah Seniority District between 9:30 A.M. and 5:30 P.M. on August 6, 7, 8, 9 and 11, 1990. The Organization also asserts that Carrier used this ineligible employee on an overtime basis from 5:30 P.M. to 9:00 P.M. on August 6 and from 5:30 P.M. to 11:00 P.M. on August 7, 1990.
The gravamen of this dispute involves a situation where the regularly assigned Drawbridge Operator was on vacation during the period of August 6 - 10, 1990. The Claimants held regularly assigned positions and there were no furloughed Bridge Tenders on the Seniority District. For this reason, Carrier called furloughed Carpenter A. E. Joyner to perform the relief on August 6 - 10 and K. Waye, who was regularlv assigned to the Trout River Bridge on Sunday through Wednesday, to work the position on August 11.
The Organization asserts that seniority rights of employees are confined to their respective seniority districts and assignment of employees across seniority boundaries is in violation of the Agreement. Thus, it insists that Carrier violated the Agreement when it permitted the employees in question to perform the vacation relief work.
The Board has previously decided the identical case between the same parties involved here. In Third Division Award 24266 it was determined that it was proper for the Carrier to use employees who were not Group D employees to fill vacation absences on bonafide Bridge Tender positions. Nothing in the record evidence establishes that Award 24266 was palpably erroneous. Form 1 Award No. 32515
LABOR MEMBER'S DISSENT
TO
AWARD 32515. DOCKET MW-31560
(Referee Scheinman)
A strong dissent is required because the reasoning of the Majority in Award 32515 is misguided and fundamentally flawed. An award which is misguided and fundamentally flawed is of no value as precedent.
In this case, the Majority unquestionably relied upon Award 24266 (Referee Scheinman) because it involved an interpretation of Article 12 (b) of the National Vacation Agreement and the same parties. Although Award 24266 also involved assignments to a bridge tender vacancy using an employe from another classification, that is where the so-called "identical" nature of that case to the instant case ends.
From an uncomplicated reading of Award 24266, two (2) things are clear: First, that the claimant in that case was "already on full time assignment" was considered important, and; Second, that there was an undenied and accruiesced to practice of assigning employes from other classes was considered determinative because the language of Article 12 (b) was viewed as ambiguous. However, the facts considered by Award 32515 which the Majority glossed over reveal it to be a significantly different case - not "identical".
Although two (2) of the three (3) Claimants in the case decided by Award 32515 were regularly assigned to bridge tender positions working forty (40) hours each week and were at least arguably on full time assignment during the claim period, the third Claimant, Mr. Pollins, was regularly assigned to work a bridge tender position only two (2) days each week. Hence, the "full time assignment" factor which was found to be important in Award 24266 could have no valid application to the circumstances framing Award 32515 insofar as Claimant Pollins was concerned.
In addition, although Award 24266 found an "acquiesced to practice" determinative, that case only considered assignments across classification lines and undenied statements about "practice". As a review of the Employes' " manifest, the dispute decided by Award 32515 involved assignments across both classification and established seniority district boundary lines. The obvious implication being that the "practice" found to be determinative in Award 24266 could only fit part of the violations considered in Award 32515. Moreover, the ONLY evidence presented in the on-property record of the dispute decided by Award 32515 documented that the Carrier had paid a conceptually identical claim and that Claimant Pollins had routinely filled bridge tender Labor Member's Dissent
vacation vacancies on the Florence-Savannah Seniority District over the past four (4) years (Employes, Exhibit "A-9"). Hence, the "evidence" considered in the dispute decided by Award 24266 could NOT be considered as determinative of the facts herein. Consequently, the Major hasty and in grave error.
Again, the Majority glossed over significant facts which distinguish the instant circumstances from those considered in Award 24266. Because the Majority's characterization of the instant case as "identical" to that decided by Award 24266 is fundamentally flawed and its adherence to "...the time honored rule of stare decisis" is misplaced and misguided, Award 32515 can have no value as precedent.