On June 23, 1996, Carrier filled a clerical vacancy at the Buffalo Yard with a regularly assigned clerical employee, at the time and one-half rate. On June 24, 1996, the Organization submitted a claim on behalf of furloughed Clerk W. Morrissey for eight hours' pay, at $14.77 per hour, alleging Carrier violated TCU Rules 1, 13-G and others when it opted to fill the clerical vacancy with a regularly assigned clerical employee rather than calling Claimant who was "home and available for the call at the straight time rate of pay." The Organization cited various Company Memoranda and instructions, which allegedly "clearly indicate that spare employees must be called before an employee is called for overtime."
Carrier denied the appeal, maintaining that there are no provisions in the Agreement between the Parties that restricts Carrier on how it must fill a vacancy. Carrier contends that it "must have and is entitled to" make this decision premised upon the amount of extra or relief work in any given month for the clerical staff:
With regard to the inter company memos and instructions that the Organization submitted in support of its position, Carrier does not dispute the fact that furloughed employees have been used in the past, in accordance with Rule 13-G, but contends it was done "not exclusively and not always first." Specifically, Carrier stated that:
Finally, with respect to the Organization's charge that Carrier is also in violation of "other rules," Carrier asserts that the Organization failed to identify specific Rules and clauses along with a description of their applicability to the alleged violation or to establish that any violation occurred.
For its part, the Organization asserts that Carrier violated both Rule 1 and Rule 13(g) of Agreement, while Carrier maintains that there is no language in either of the Rules that requires it to call a furloughed Clerk to fill a vacancy rather than use the regularly assigned clerical employee. In all of the circumstances presented, we find Carrier's position persuasive. Form 1 Page 3
"The contract shall govern the hours of service, rates of pay and working conditions for employees of the Carrier engaged in work in positions to which this Agreement applies as provided in Rule 32, i.e. Clerks Grade I, II and III.
Clearly, Carrier's actions on June 23, 1996 did not constitute a violation of the Scope Rule. In fact, there is no dispute that the work at issue was performed by the regularly assigned Clerk at Buffalo Yard, and therefore, we find no violation of Rule 1 in these circumstances.
Rule 13(g), infra, provides the avenue for a furloughed employee to make himself available for extra work. It reads, in relevant part, as follows:
In that connection, Carrier acknowledges that it has, on some previous occasions, used a furloughed employee at straight-time rates in similar circumstances, but also has exercised discretion to use a regular employee at premium rates. Had Carrier chosen to call a furloughed employee on June 23, 1996, there is no question that Claimant met the appropriate criteria. However, that begs the question at the heart of this case, i.e. whether Carrier was obligated to call a furloughed employee by binding Agreement language or binding "past practice," as evidenced by a consistent, uniform, longstanding course of c Form 1 Page 4
The contract language does not expressly support the Organization's contention that it was incumbent upon Carrier to call Claimant on the date at issue and the evidence of unilateral Carrier memoranda is insufficient to establish the mutuality and consistency required to prove a binding "past practice." Based on all the foregoing, we conclude that the Organization did not prove the claimed violation. Accordingly, the claim is denied.