Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
 THIRD DIVISION
 Award No. 38119
 Docket No. CL-39104
 07-3-05-3-563
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 (Transportation Communications International Union PAR71 TO DISPUTE:

STATEMENT OF CLAIM:







FINDINGS:

 The Third Division of the Adjustment Board, upon the whole record and all the evidence, fords that:
 Form 1 Award No. 38119
 Page 2 Docket No. CL-39104
 07-3-05-3-563

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.






On April 16, 2004, Chief Clerk S. Simonette marked off for vacation. Under the provisions of the Vacation Agreement, the Carrier elected to blank the position. The normal hours associated with the Chief Clerk position are 8:00 A.M. to 4:30 P.M.. On this same date, Marie Walsh, a Guaranteed Extra Board Clerk, was called and assigned to work from 7:00 A.M. to 3:00 P.M. When it became evident that there was a need to inuut the Selkirk uavroll, Terminal Superintendent Bill Keough authorized Walsh to perform the payroll input during her 7:00 A.M. to 3:00 P.M. tour of duty. Because this payroll input duty was associated with the Chief Clerk's position, Walsh was paid at the higher Chief Clerk's rate of pay. On this

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 position. Because no Clerical employee was available to work at the straight time
 rate of pay, the Carrier called Walsh as the senior qualified employee to work at the
 overtime rate. The Organization filed the instant claim maintaining that the work
 was improperly assigned to Walsh and should have been assigned to Lee Atwater,
 the Claimant herein.

Organization's Position: It is the Organization's position that as a result of assigning the payroll input function to Walsh, the Carrier effectively elected not to hln*.lr thn fhinf l"lnrlr~e ~neifinn n_A in *hn nrnrnec n_iln*nrnll<rhnn<rnal thn rl_*<i


hours of said position from 8:00 A.M. - 4:30 P.M. to 7:00 A.M. - 3:00 P.M. in violation of Rule 23. Moreover, the Organization notes, had the Carrier not made this unilateral change of time, Walsh would have been required to work the Chief

Form 1 Award No. 38119
 Page 3 Docket No. CL-39104
 07-3-05-3-563

Clerk's hours of 8:00 A.M. to 4:30 P.M. and accordingly, would not have been available to perform the Extra Messenger's assignment which began at 3:00 P.M. As a result, the Claimant was improperly denied an overtime opportunity.


Carrier's Position: It is the Carrier's position that the Chief Clerk's position was properly blanked on April 16, 2004, and that the Terminal Superintendent properly assigned the payroll input duty to Walsh, a task she performed during her normal work hours. While Walsh was paid the higher rate of pay associated with the Chief Clerk's position as a result of this input function, this does not, in and of itself, prove that the Chief Clerk's position had not been properly blanked, and certainly does not lend to the Organization's claim that the Terminal Superintendent's actions effectively changed the duty hours associated with the Chief Clerk's position. Finally, the Carrier posits that the instant claim must be dismissed due to an irreconcilable dispute in material facts. In this regard, the Carrier main*aine *ho* in linh* of ~o,.,.,in.,l C_....»S_*_,.,.I,...s LJ_-..-7.9- -tup_

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 statement that he assigned the payroll input duties to Walsh on April 16, the
 Organization, which bears the ultimate burden of proof in this case, was unable to
 conclusively establish that the Chief Clerk's position was not properly blanked on
 that date.

As an initial note, it is well settled by controlling authority that the Board has no power to impose principles of equity or justice. Our responsibility and obligation is to interpret and apply the provisions of the Agreement between the parties as wri**PnNnr 'Rri, wp efrt*hPFl wi*h any aaa*hnri*i, fn rncxrri*n +hu A 1702 i'n f.-- -V


either side to the dispute, for to do so would deprive them of the bargain struck.

In order for the Organization to be successful in its case, it must establish that the Chief Clerk's position was not blanked on April 116, 2004, and that the Chief Clerk's duty hours were impermissibly changed by the Carrier as part of its plan to permit Walsh to perform the payroll input function on that date. For the reasons that follow, the Board concludes that the Organization failed to meet its burden and, accordingly, the instant case must be denied.

Form 1 Award No. 38119
 Page 4 Docket No. CL-39104
 07-3-05-3-563

First, the Organization's claim that the Chief Clerk's position was not properly blanked rests on its assertion that because the payroll input duty


performed by Walsh was part of the duties performed by the Chief Clerk, ipso facto, the position was not properly blanked on April 16. The Board requires more
 than an assertion in order to sustain a claim that a Rule has been violated. Given
 this conclusion, the Board fords no Rule violation in the fact that the Terminal
 Superintendent took a necessarv dutv normally nerformed by the Chief Clerk anti
 assigned it to Walsh to perform during her normal working hours. It is also
 significant that the Carrier's assertion that Walsh was not qualified to perform the
 duties of the Chief Clerk's position went uncontested. Accordingly, it would have

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uccaa au ac ascaXas y a lE LUX LUC 1.a3,11%:1 lt! llQYC dl.!'tgIIC(L VV Q4%IL Uf Ierfurua me iuu ust of duties associated with the Chief Clerk's position on April 16.


Second, while admittedly Walsh did perform the payroll input duty, this fact, in and of itself, fails to support the Organization's claim that the duty hours associated with the Chief Clerk's position were unilaterally altered. Again, as in the Organization's claim that the Chief Clerk's position was not properly blanked on April 16, its follow-up claim that the Carrier unilaterally altered the duty hours associated with the Chief Clerk's position rests on assertions with no proof. Accordingly, this contention must he rejected as well. Absent proof that the Carrier's actions violated the parties' Agreement, the claim must be denied.








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


                        u.sy vaua.a va iaaaau Yavaoavaa


Dated at Chicago, Illinois, this 15th day of March 2007.
                  LABOR MEMBER'S DISSENT


                          TO


THIRD DIVISION AWARD 38119

CL-39104


                  (Referee Dennis T, Campasnw)


On the day under dispute, Guaranteed Extra List employee Marie Walsh was called as an extra from 7:00 a.m. to 3:00 p.m. to input the Selkirk payroll. It is undisputed that this is work normally and regularly performed by Chief Clerk Position No. 9802_154 during its regularly assigned hours of 8:00 a.m. to 4:30 p.m. It is also undisputed that the regular occupant of Chief Clerk Position No. 4802-154 was absent this day observing vacation-that a temporary vacancy existed on Chief Clerk Position No. 41302-154 .

 In its recitation of the facts, the majority relates these events as though Walsh was imlocently called to work at 7:00 a.m. with no thought of using her on Chief Clerk Position No. 4802-154 and upon arrival was only coincidentally used to input the Selkirk payroll when it
 became evident it needed to be done. This completely distorts the ~ ct that '- _ ,
 ui~ ~arrier anew, in advance, that the Chief Clerk would be observing vacation and knew, in advance, the payroll had to be input.

 In its erroneous opinion, the majority found that Chief Clerk, Positicr~ N c. 4802-154 was blanked, even in the face of the undisputed fact that Walsh performed its work from 7:00 a.m. to 3:00 p.m. This flies in the face of the time worn industry standard that if the work of a position is performed, even less than eight hours' worth, it isn't blanked- it's filled.

 This tangential, but vital, mistake aside, brings us to the main question of whether a 3:00 p.m. Extra Messenger position was properly filled. To get to that question you have to answer three underlying connected questions. Was the 8:00 a.m. temporary vacancy on the Chief Clerk position actually blanked or did Walsh work it? Were the hours of the Ch;-11 Clork position improperly altered? Was Walsh actually available at 3:00 p.m. for the Extra Messenger position or was she unavailable because she should have been working until 4:30 p.m. that day?

      The hours for the Extra Messenger were 3:00 p.m. to 11 ~00 p.m. 011,,6ous,- t,~ a ...---

~.y, u e lluucs of Chief Clerk position and the Extra Messenger overlapped (between 3:00 p.m. and 4:30 p.m.). Obviously an employee working the Chief Clerk position until 4:30 p.m. would be unavailable for the Extra Messenger position at 3:00 p.m.

 If the Chief Clerk position was actually blanked as the majority states, and if the hours of
 the Chief Clerk position weren't improperly altered, and of Walsh was available for the 3:00 p.m,
 Extra Messenger position, then the answer to the main question follows easily. The Agreement
 was not violated-Walsh was senior to Claimant and was properly called. Conversely, if t hese
 questions aren't answered affirmatively, the Agreement was violated and Claimant should have
 been called for the overtime.

                            2

      Considering the questions one at a time, as already stated, it's obvious the Chief Cleric


position was not blanked. There's no dispute that the work of Chief Clerk Position No. 4B02-1 54 was performed by Walsh. The Carrier candidly admits Walsh spent the day inputting the
 Selkirk payroll. Accordingly, despite Carrier's doubletalk about using Walsh as an "extra," the
 Chief Clerk position wasn't blanked-Walsh worked it-it was filled. And Carrier's argument
 that Walsh wasn't entirely qualified on the vacation vacancy doesn't hold water, either.
 Whatever W alsh's qualifications, Carrier, not the Organization, made the decision to call her to
 perform the work of the position. Vacancies are often filled by employee not fully qualified
 when fully qualified employees are not available. This does not mean the vacancy was not filled
 or that the work of the position was not performed.

 In regard to the second question, since the Chief Cleric position wasn't blanked it's selfevident that Walsh was used to perform the work of the position outside its regularly assigned hours and that Carrier improperly altered the hours of the temporary vacancy. The hours of assignment of the temporary vacancy were 8:00 a.m. to 4:30 p.m., not 7:00 a.m. to 3:00 p.m. when Walsh performed its work as a so-called extra. There's no provision in the Agreement that allows Carrier to shift or flex the hours of the position.

 The answer to the third question follows simply from the second. If Carrier improperly altered the hours of the vacation vacancy, then Walsh wouldn't have, shouldn't have, been available for the 3:00 p.m. Extra Messenger position had she worked the temporary vacancy during its normal assigned hours. Walsh was senior to Claimant, but it's well settled by this Board that while the factor of seniority is an important determinant in assigning overtime it's not the sole determinate. The second determining factor in assigning overtime is the availability of the employee to work the overtime. Walsh wasn't available. Claimant was.

 If any precedentiai weight was bestowed on the majorities' decision, and none should be, any time the regular occupant of a position was absent an extra could be called for the temporary vacancy outside its regular assigned hours and used to perform the work of the position. This would completely ignore and make meaningless the bulletining rules, the seniority rules and the temporary vacancy calling rules of the Agreement. Because of such, I respectfully dissent.

                                      Stephen F. Watson

                                      TCU Labor Member

                                      March 22, 2007


3

Carrier Members' Concurring Opinion

and

Response to Labor Member's Dissent

to

Third Division Award 38119

Docket CL-39104


                (Referee Dennis J. Campagna)


The Labor Member's Dissent poses a series of questions surrounding the facts of this case in a belated effort to prove that there was, in fact, a violation of the Agreement, and to thereby undermine the Board's denial of the Organization's claim.

In the sixth paragraph of his Dissent, the Labor Member states that if the following three questions can be affirmatively answered, i.e., (1) if the Chief Clerk's position was actually blanked as the majority states, and (2) if the hours of the Chief Clerk's position were not improperly altered and (3) if Walsh was available for the 3:00 P.M. Extra Messenger position, then the Agreement was not violated. Conversely, the Labor Member states that if these questions cannot be affirmatively answered, then the Agreement was violated.

Suffice to say, the Board correctly decided this case. All questions posed by the Labor Member can be affirmatively answered. First, the Chief Clerk's position was actually blanked. Second, the hours of the position were not improperly altered, because they were not changed and the position was not filled. Lastly, Walsh was available for the 3:00 P.M. Extra Messenger position, because she worked extra from 7:00 A.M. to 3:00 P.M.

These are the very conclusions the Referee arrived at during his review of the on-property record of the case. There is no dispute that the incumbent was on vacation and Walsh was not qualified to work the Chief Clerk's position. Granted, the payroll input that Walsh performed was normally performed by the Chief Clerk as part of his assignment. However, those duties were but a single function of the

Carrier Members' Concurring Opinion & Response
 Third Division Award 38119
 Page 2

Chief Clerk's position and were properly distributed to Walsh under the provisions of the National Vacation Agreement. It is significant to note that no other duties associated with the Chief Clerk's position were identified as having been performed


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 ..~ »._ ~. _, , w assv%iaLcu WIL11 111e l.lllel l.1erk's position were also
 performed- by Walsh, the Organization had the burden to prove such. It
 presumably would have been a simple matter for the Organization to obtain a
 written statement from Walsh attesting to the work she performed on the date in
 question. Absent evidence that Walsh performed other duties associated with the
 Chief Clerk's position for her entire tour of duty. the Board nrnnerlv ennrinded that
 she merely worked extra from 7:00 A.M. to 3:00 P.M. during which time she input
 the payroll. Contrary to the Organization's unsubstantiated assertion, Walsh was
 not ==required"° to work the 8:00 'A.M-. - 4:30 P.M. Chief Clerk position. Saying it is
 so does not make it so, no matter how many times the assertion is repeated.

In view of the foregoing, the Board correctly determined that Walsh was available to work overtime at 3:00 P.M. and there was no violation of the parties' Agreement.


                            M. .


                            Michael C. Lesnik

                            ®. .M_. /1 < e

                            p . &R

                            Martin W. Fingerhut

                            Bjarne R. Henderson

                            John P. Lane


May 14, 2007