"The Carrier violated the SCL/TCU clerical working agreement, Rules 18(f), 19(h), and 20(f), as well as others when, on May 13, 2007, it called guaranteed extra board employee B. R. Lively, ID 145$60, on what should have been one of his two not-necessarily-consecutive rest days to protect job number 4J10-101 (the "tag" rest day of regularly assigned employee J. S. Miles, Jr., ID 161675). Employee Lively was unavailable to the Carrier May 7 and May 8, 2007 due to a personal injury, worked 8 hours straight time on position 4J10-101 May 9, 2007, was available to the Carrier but not worked May 10, 2007, worked 8 hours straight time on position 4J10-101 May 11, 2007, was available to the Carrier but not worked May 12, 2007, and should have been allowed to observe one of his two not-necessarily-consecutive rest days in accordance with Rules 18(f) and 19(h) of the collective bargaining agreement on the date in question.
As a result of said violation, the carrier shall now be required to pay Claimant J. S. Miles, Jr., ID 161675, 8 hours and 00 minutes pay at the overtime rate of $253.82 daily."
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 Claimant was assigned as a General Clerk at the Carrier's Savannah, Georgia Terminal, with a tour of 7:00 A.M. to 3:00 P.M., with Sunday and Monday rest days.
May 13, 2007 was a Sunday (the Claimant's rest day). On that date, the Carrier worked Guaranteed Extra Board employee B. R. Lively at straight time instead of calling the Claimant in at overtime. This claim followed.
GEB employee Lively's work history for the week of Monday, May 7 through Sunday, May 13, 2007 was as follows:
As of May 13, GEB employee Lively did not have 40 straight time hours for the week May 7 through May 13, 2007. Under Rule 18(f) the Carrier had the right to utilize Lively at straight time off the extra board without being obligated to call the Claimant in at overtime. As the Carrier correctly asserts, Rule 18(f) clearly provides that GEB employees have first rights to protect work at the straight time rate of pay until the employee protects 40 straight time hours in a workweek. As of May 13, 2007, GEB employee Lively had not yet reached 40 hours for the week. The Carrier's use of GEB employee Lively at straight time rather calling the Claimant in at overtime therefore did not violate the Agreement.
provisions do not impose set rest days for employees like GEB employee Lively. Because GEB employee Lively had not yet reached 40 hours during the relevant week, the Carrier had the right to utilize Lively at straight time rather than calling the Claimant in at overtime. For the Board to adopt the Claimant's understanding of what the Rule says would require the Board to change the language of the governing Agreement provisions. The Board does not have that authority.
We note that this is not the first time the Claimant has brought this same dispute to the Board. See Third Division Award 39666 which also involved GEB employee Lively and assignment of work to that employee rather than the Claimant. In Award 39666, the Board held:
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"This is, for all purposes, the same dispute that was decided by the Board in Award 33507. We cannot say that Award 33507 is palpably in error. As such, and for purposes of stability, we cannot decide this case de novo, but we are required to defer to that prior Award. To do otherwise would be an invitation to chaos and would result in encouraging parties after receiving an adverse decision to attempt to place a similar future dispute before another referee in the hope of obtaining a different result.
The Organization's assertion in this case that it has better evidence than in Award 33507 that, in fact, the positions had been `switched' cannot change the result. In the prior Award it was found that for PEP positions, `[t]he Carrier has the right to change starting times.' Coupled with the fact that the positions are designated PEP and thus not covered by bid and bump requirements, for us to use the Organization's alleged better evidence in this case would amount to an indirect way of reviewing this dispute de novo. At best, as found in Award 33507, `the Carrier is sharpshooting the Agreement to keep its excepted positions.' But that was allowed in Award 33507 and, because that decision was not palpably erroneous, in this same dispute we are required to defer to Award 33507. The bottom line in the prior Award is that under the same basic facts, the Carrier `did not violate the Agreement.' For purposes of stability, the decision must be the same in this matter."