Public Law Board No. 3781 / Award No. 76 - Case No. 76
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I The Carrier submits that the procedures in Rule 3, Section 4, which govern the ;
i assignment of an Employee to a particular position or vacancy, have no application to the
claim because the confronting facts show that there was no position or vacancy open to
be filled and that bidding or bumping into a new or different position was not involved.
The Carrier submits further that since both the Claimant and Mr. Winter were incumbents
on Class 2 Machine Operator positions in different gangs on the claim dates, the Carrier
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was free to select the Class 2 Machine Operator that it deemed to be more appropriate -
and available to assist the B&B project, and that the Carrier exercised this authority by
assigning the Claimant to the first week and Mr. Winter to the second week of the project.
The Carrier further submits that Rule 17 does not support the claim because the
work of operating the backhoe to assist the B&B Gang was assigned to Mr. Winter as
part of his regular duty assignment during regular working hours; therefore, the overtime
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work relating to the ditching project performed by Mr. Winter, being an extension of the
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same work performed by him during the course of his work day or week, was properly
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assigned to Mr. Winter under the preference provision in Rule 17.
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Rule 3, Section 4, and Rule 17, in pertinent part read as follows:
Section 4.
Filling temporary
(a) A position or vacancy may be filled temporarily
pending
assignment. When
new positions or vacancies occur, the senior
qualified available
employees will be given preference, whether
working in
a lower
rated position
or in the same
grade
or class
pending advertisement and award
.
FRED BLACKWELL
Rule 77 - PREFERENCE FOR OVERTIME WORK
ATTORNEY AT LAW
P.Q B07X 6095
WESTCOWMBLA,
SC.29171
f8q791
FRED BLACKWELL
ATTORNEY AT LAW
ROL 8(6095
WESTCOLUMBUI
SC.29171
Ifioal 791-eoss
Public Law Board No. 3781 / Award No. 76 - Case No. 76
Employees will, if
qualified and
available, be given preference for
overtime work,
including calls on
work ordinarily and customarily
performed by them
during the
course of their work week or day in the
order of their seniority."
From full review of the whole record,' the Board finds that it was contractually
permissible for the Carrier to use the Claimant and Mr. Winter, in successive weeks, to
operate a Backhoe to assist the B&B Gang in the installation of a water line and therefore
the record does not show an agreement violation by the Carrier.
Both the Claimant and Mr. Winter were Class 2 Machine Operators in the Track
Department on the Buffalo Division, earning the same rate of pay, in the week before and
the week of the claim period. Nothing in the agreement prohibited the Carrier from
choosing either the Claimant or Mr. Winter to perform the work in question. The Carrier's
use of the Claimant for the backhoe work during the first week of the 8&B water line
project did not require the Carrier to use the Claimant during the second week, July 10 -
14, 1989. The assignment of Class 2 Machine Operator Winter to assist in the second
week of the B&B project was merely a change of the work location in the performance
of the duties already assigned to Mr. Winter's position.
The Carrier could have assigned the operation of the backhoe on the
project to the Claimant during both weeks of the need for a backhoe on the project;
however, the Carrier's decision to use a different Class 2 Machine Operator during the
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All prior authorities submitted for the record have been considered and analyzed in
arriving at this decision.
Public Law Board No. 3781 / Award No. 76 - Case No. 76
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second week of the B&B project was within the-Carrier's agreement authority and the
Claimant did not lose any of the wages of his regular assigned job by the Carrier's action.
The overtime that Mr. Winter earned during the week of July 10 - 14, 1989,
accrued to him under the preference provisions of Rule 17 because he was assigned to
the backhoe during the regular work day on which the overtime arose; if overtime had
developed while the Claimant was assisting the B&B Department, he would have had
preference to that overtime.
The Carrier's actions in this matter represent a normal exercise of the Carrier's
right to direct the work force. It is well settled that Management has the sole authority to
determine where equipment shall be located and that seniority does not follow equipment.
See this Neutral's holding on this point in
Award No. 29. Public Law Board No. 3781 (0605-89).