Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35195
Docket No. CL-35402
00-3-99-3-279
The Third Division consisted of the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak)
STATEMENT OF CLAIM
:
"Claim of the System Committee of the Organization (GL-12332) that:
I. Claim of the System Committee of the TCIU (AM992) on behalf of
Claimant, Jerry Paulsen:
(a) The Carrier violated the Clerk's Rules Agreement
effective July 21,1972, as revised, particularly Rules
7, 14, 26, Appendix E and other Rules, when on
November 11, 1997 (Veterans Day Holiday), during
the 2nd Trick tour-of-duty, location Amtrak
commissary, Rensselaer, NY, they allowed Junior
Employee, Gregg Shanno to work for what should
have been overtime as a Commissary Clerk, failing to
instead call and use the Claimant;
(b) Claimant Paulsen should now be allowed eight (8)
hours overtime punitive pay based on the
appropriate rate of pay on account of this violation;
(c) Claimant Paulsen is senior, qualified, was available
and should have been called to cover the involved
position in accordance with the Rules mentioned
above;
(d) This claim is presented in accordance with Rule 25
and should be allowed.
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II. Claim of the System Committee of the TCIU (AM993) on behalf of
Claimant J. Heilig:
(a) The Carrier violated the Clerk's Rules Agreement
effective July 21,1972, as revised, particularly Rules
7, 14, 26, Appendix E and other Rules, when on
November 11, 1997 (Veterans Day Holiday), during
the 2nd Trick tour-of-duty, location Amtrak
commissary, Rensselaer, NY, they allowed Junior
Employee Dave Gould to work for what should have
been overtime as a Ticket Clerk, failing to instead
call and use the Claimant;
(b) Claimant Heilig should now be allowed eight (8)
hours overtime punitive pay based on the
appropriate rate of pay on the account of this
violation;
(c) Claimant Heilig is senior, qualified, was available
and should have been called to cover the involved
position in accordance with the Rules mentioned
above;
(d) This claim is presented in accordance with Rule 25
and should be allowed.
111. Claim of the System Committee of the TCIU (AM994) on behalf of
Claimant I. Dulay:
(a) The Carrier violated the Clerk's Rules Agreement
effective July 21,1972, as revised, particularly Rules
7, 14, 26, Appendix E and other Rules, when on
November 11, 1997 (Veterans Day Holiday), during
the 1st Trick tour-of-duty, location Amtrak
commissary, Schenectady, NY, they allowed Junior
Employee, John Monette to work for what should
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have been overtime as a Ticket Clerk, failing to
instead call and use the Claimant;
(b) Claimant Dulay should now be allowed eight (8)
hours overtime punitive pay based on the
appropriate rate of pay on account of this violation;
(c) Claimant Dulay is senior, qualified, was available
and should have been called to cover the involved
position in accordance with the Rules mentioned
above;
(d) This claim is presented in accordance with Rule 25
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.
On November 11, 1997, the Veterans Day Holiday, G. Shanno, D. Gould, and
J. Monette, all unassigned employees junior to the Claimants on this day, were posting
positions at the Carrier's Schenectady and Rensselaer, New York, locations. They
each were paid eight hours pay at the pro-rata entry rate for their posting on the day
in question. In letters dated December 17,1997, the Organization tiled claims in behalf
of the Claimants, J. Paulsen, J. Heilig, and I. Dulay that alleged the work performed
by the unassigned junior employees should have accrued to the Claimants. Carrier
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Supervisor M. W. Hollister denied the initial claims in letters dated January 14,1998.
Subsequent appeals were denied as well.
The Organization alleges that the Carrier violated RULE 7 - SHORT
VACANCIES, RULE 14 - OVERTIME, RULE 26 - VACATION, HOLIDAY &
GROUP INSURANCE; UNION SHOP AND DUES DEDUCTION, APPENDIX "E,"
and other Rules of the Agreement by using unassigned junior employees in posting
status to perform work, which by contract, should have accrued to the Claimants. The
Organization also contends that the junior employees were working alone and paid
overtime, hence they could not have been posting the positions. The Organization
asserts that in the cases of Claimants Paulsen and Dulay, the posting employees were
used when the Claimants were available. In the case of Claimant Heilig, Gould was
allowed to post when the incumbent was on an assigned rest day. The Organization
states it agrees with the Carrier's definition of posting in a letter by R. O. Denzel dated
April 3, 1998, which reads in pertinent part, "While posting, an employee is learning
the duties of a position by working alongside of a regularly assigned employee."
However, the Organization contends that the Trainers of those posting the positions,
the Claimants, should have been on-duty on the day in question.
The Carrier's position is that the three junior employees were posted to the
positions in addition to regular employees on the day in question for the purpose of
training. Additionally, the Carrier contends that since they had less than one month
of service at the time, they were not fully qualified to perform the duties of the
positions they were posting on. Further, the Carrier asserts that management has the
prerogative to determine how to utilize its work force.
After careful review of the record the Board finds no evidence of a Rule 7, 14,
26, Appendix E, or other Rule violation as alleged by the Organization. The record
does not contain evidence that indicates that the posting employees were occupying the
positions, performing work accruing solely to the Claimants, or working alone thus not
in training as the Organization asserts. There is also no clear evidence that the
Claimants were available to perform work on the day in question or that the Claimants
lost any compensation. Accordingly, the Organization has failed to meet its burden of
proof.
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AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 20th day of December, 2000.