Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33833
Docket No. CL-33253
99-3-96-3-721
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:
( CSX Transportation, Inc. (former Seaboard Coast Line
( Railroad Company)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Organization (GL-11453) that:
1. Carrier violated the Agreement on August 30, 1995, when it failed
to call Claimant F. O. Ehrmantraut, ID 613837, to fill the vacancy
of
Clerk R. Casing, who was off sick.
Carrier shall compensate Claimant eight (8) hours' pay at the
applicable rate for the violation."
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.
On August 30, 1995, Claimant was on his rest day from his position at the
Carrier's Customer Service Center in Jacksonville. On that date, Clerk R. Casing
Form 1
Page 2
Award No. 33833
Docket No. CL-33253
99-3-96-3-721
marked off sick from Position No. 340 and, because of exhaustion of his sick benefits,
was not compensated. The Carrier then blanked Casing's position. Claim was filed on
Claimant's behalf because he was not called to fill Casing's position.
Rule 49(k) provides:
accordingly.
"(k) It will be optional with the Carrier to fill or blank a position of an
employee who is absent account his personal sickness under this
rule or Rule 50, and is receiving an allowance under either rule. If
the Carrier elects to fill the vacancy, rules of the Agreement
applicable thereto will apply. The right of the Carrier to use other
employees occupying positions coming under the scope of this
agreement to perform the duties of the position of the employee
absent under this agreement is recognized."
While the Carrier has the general managerial prerogative to blank positions, Rule
49(k) places a specific limitation on that right. Under that Rule, the Carrier has the
option to blank a position for an employee absent due to sickness if that employee "is
receiving an allowance . . . ." Because Casing had exhausted his sick benefits, Casing
did not receive such an allowance when he marked off sick. In accordance with the plain
language of the Rule, the Carrier therefore could not blank Casing's position without
first attempting to fill it.
The Carrier's assertion that Claimant refused a call for another position does not
change the result. Aside from the fact that the call records for that position were not
part of the record developed on the property, the record indicates that the call refused
by Claimant was for a position with a starting time one hour different from the position
in dispute. The fact that Claimant may have refused a call for another position does not
relieve the Carrier from its obligation to call Claimant for the vacant position in dispute.
As a result, Claimant lost a work opportunity. He shall be compensated
Form 1
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Award No. 33833
Docket No. CL-33253
99-3-96-3-721
AWARD
Claim sustained.
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 21st day of December 1999.