PROCEEDINGS BEFORE PUBLIC LAW BOARD NO. 3781
Case No. 84
Referee Fred Blackwell
Carrier Member: R. O'Neill Labor Member: W. E. LaRue
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
VS.
CONSOLIDATED RAIL CORPORATION
STATEMENT OF CLAIM:
Claim of the Brotherhood (CR-2283) that:
(a) The Carrier's refusal to allow Foreman J. A. Patterson to
continue to work on the Foreman's position following his
initial assignment on November 11 and 12, without proper notice as provided by Rule 3, Section 4(a), is in violation of
the Schedule Agreement.
(b) Claimant Patterson shall be compensated for eight (8) hours
each day on November 13, 14, and 15, 1985, at the appropriate
rate of the Foreman position in Advertisement No. 59, dated
November 4, 1985, and awarded effective November 18, 1985.
FINDINGS:
Upon the whole record and all the evidence, after September 23, 1988 hearing in Washington, D.
C.,
the Board finds that
the parties herein are Carrier and Employees within the meaning of
the Railway Labor Act, as amended,, and that this Board is duly
constituted by agreement and has jurisdiction of the parties and
of the subject matter.
OPINION
This claim is based on the allegations of Claimant J. A.
Patterson that the Carrier violated the five (5) day notice re-
quirement of Rule 6 of the Schedule Agreement by its action of
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P. L. Board No. 3781 - Award No. 39, Case No. 84
placing him in a temporary Foreman vacancy on November 11 and 12,
1985, which arose from the advertisement of a Foreman position for
the I & C Crossing Gang at Urbana, Ohio, and then advising him on
November 13 that he could no longer work the position. The Claimant requests compensation for lost time on November 13, 14, and
15, 1985.
The Carrier asserts that no rule violation is shown of
record in that it was discretionary, not mandatory, under the
governing rules for the Carrier to fill the temporary vacancy, and
that Rule 6 did not apply to the situation.
After due study of the whole record, inclusive of the
submissions presented by the parties in support of their positions in the case, the Board concludes and finds that the record
does not establish a rule violation respecting the Carrier's handling of the Claimant.
The carrier had discretion under Rule 3, Sections 3. and
4., of the Schedule Agreement to fill the vacancy on an advertised
position temporarily pending assignment; however, the Carrier is
not required to do so, because the rule is cast in the discretion
ary phraseology of a "vacancy may be filled temporarily pending
assignment". Hence, the Carrier's decision to assign the Claimant
to the temporary foreman vacancy on November 11 and 12, 1985, did
not obligate the Carrier to continue the Claimant in the temporary
vacancy pending its assignment under the job bulletin. In addi
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P.L. Board No. 3781 - Award No. 39, Case No. 84
tion, the Claimant at no time acquired incumbent status on the
Foreman position under advertisement and the position was not
abolished. in these circumstances, it cannot be said that the
five (5) day notice of abolishment of a position required by Rule
6 was applicable.
In view of the foregoing, and based on the record as a
whole, the claim will be denied.
Claim denied.
BY ORDER OF PUBLIC LAW BOARD NO. 3781.
Fred Blackwell, Neutral Member
,~Y'E'
j
R. O'Neill, Carrier Member W. E. LaRue, Labor Member
Executed on
~u-` d
, 1989
CON-3781\39-84.619
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