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to the Company and that the facts of record available to both parties herein reflected him as AWOL on said day. Claimant Tafoya was also AWOL on the day claimed in this Docket and after a no report absenteeism extending from August 24 to August 29, inclusive, he finally exercised seniority over a junior man on August 30, 1962.
6. The claim as presented by the Organization was duly processed by the Company at the local level and declined. It was then appealed to the Manager of Personnel, the highest official of the Company designated to receive such claims, who after lengthy consideration and thorough discussion in conference disallowed the appeal in writing by letter of November 14, 1962. There are being filed herewith as Company's Exhibits "A" to "F", inclusive, copies of the following:
(Company's Exhibit "A") Letter dated August 27, 1962 from the Local Chairman presenting claim herein to the Plant Manager.
(Company's Exhibit "B") Letter dated September 6, 1962 from the Plant Manager declining claim at local level.
(Company's Exhibit "C") Letter dated September 17, 1962 from the General Chairman appealing claim to Company's Manager of Personnel.
(Company's Exhibit "D") Letter from Manager of Personnel to the General Chairman dated September 20, 1962.
(Company's Exhibit "E") Memorandum of conference between TDW (T. D. Walsh, Manager of Personnel) and CSC (C. S. Coleman, Assistant General Chairman) held at San Francisco November 7, 1962.
(Company's Exhibit "F") Letter dated November 14, 1962 in which the Manager of Personnel confirmed conference and declined claim in writing to the General Chairman.
POSITION OF CARRIER: At the outset the Company wishes to emphasize that this claim does not involve in any way the blanking of a job by holding off its regular occupant. The regular occupant, J. L. Martinez, was of his own volition absent without report on the day claimed. On the other hand, the Company would point out that an assigned occupant of a regular iceman position who has actually reported and desires to work can be sent home under certain circumstances as provided under Rule 28 (b), applicable to Ice Plant and Platform positions, reading:
"RULE 28 (b) Regularly assigned hourly rated employes required to report for work at regular starting time, and prevented from performing service by conditions beyond control of the Company, will be paid for actual time held, with a minimum of two hours. If worked any portion of the day, under such conditions, up to a total of four hours, a minimum of four hours shall be allowed. If worked in excess of four hours, a minimum of eight hours shall apply. All time under this Rule shall be at pro rata."
However, in the confronting claim the latter Agreement provision is not germane for all that is at issue here is whether claimant should have been telephoned and requested to come in or at least paid when a regularly assigned iceman failed to report for duty.
The Company submits the Organization cited Rule 28 in its presentation of claim (see Company's Exhibit "A") knowing the Rule was not germane and merely to lay ground work for later urging a compromise settlement on some such basis as 2 or 4 hours mentioned in Rule 28 (b). Clearly no settlement of any kind was justified since reporting to work is an essential prerequisite for any payment under Rule 28 (b) and it is admitted by both parties that claimant did not report to work. In fact, he was AWOL from August 24 to August 29, inclusive. Similarly, since the iceman pool had over 30 supernumerary or surplus men assigned on the day claimed, there is no question about compliance with Rule 28 (a) which calls for maximum number of regular assignments consistent with the requirements of the service.
The next rule upon which the Organization relies is Rule 30 (See Company's Exhibit "A"). During the conferences at the local and appeal levels the Organization's representatives argued that Rule 30 was violated in its requirement that "available furloughed employes will be recalled in seniority order for additional positions on the extra board." The record reveals that there were no such additional positions on said day. Further, the claimant herein was not furloughed but AWOL, and as a consequence of being AWOL, he was naturally not available in person nor was he available by written notice, which is a requirement of the current Agreement. Accordingly, Rule 30 has no application to the issue in this Docket and there was no violation thereof.
In connection with the preceding it should be borne in mind that claimant left his own position unprotected on August 24, that he was AWOL on that day, the succeeding day, the day claimed herein, and three days thereafter. He had sufficient seniority to work on all of those days, including the day claimed, and since he chose not to work, it is incomprehensible that he, or the Organization on his behalf, should seize upon the AWOL absence of another man from the Iceman Pool to demand that claimant be paid for work which at the time he so scornfully spurned. There is no basis whatsoever for even presenting such an irresponsible claim much less progressing it to this Division.
The third and last rule the Organization uses in its futile endeavor to support such a claim is Rule 6-BULLETINING POSITIONS. For the Board's convenience, the Section of Rule 6 included in the Organization's contention are quoted as follows:
RULE 6-BULLETINING POSITIONS
(a) All new positions or vacancies shall be promptly bulletined on bulletin boards accessible to all employes affected, except as provided in Paragraphs 1, 2, and 3 of this rule. Bulletin will show location, title, duties of position, hours of service and rate of pay. Copies of bulletins will be furnished General Chairman and Local Chairman.
1. Positions included in Rule 1, Section (d), will not be bulletined, but notices of new positions or vacancies will be posted on bulletin boards at the location involved. Employes desiring such positions must file their applications for same within three days and preference will be given to senior qualified employes. Notices will show classification of the position or positions involved, hours of service and rates of pay; however, the provisions of Rule 17, Section (b) will not apply.
2. Positions or vacancies of thirty days or less duration; or posi
f tions established for special work, other than regular routine work, including positions in connection with loading seasonal perishable traffic, of ninety days or less duration, may be filled without bulletining.
3. New positions or vacancies of thirty (30) calendar days or less duration, shall be filled, whenever possible, by the senior qualified unassigned employe who is available and who has not performed eight (8) hours work on a calendar day; an unassigned employe will not be considered as being available to perform further work on vacancies after having performed five (5) days or forty (40) hours of work at the straight time rate in a work week beginning with Monday, except when such unassigned employe secures an assigned position under the provisions of Rule 6 or returns to the extra list from a position to which he was assigned, in which event he shall be compensated as provided for in Rule 31, Sections (d) and (e).”
The Organization contends that the Agreement provisions just quoted support its claim and constitute a 'guarantee" rule. In this respect the Company maintains Rule 6 is merely what its title implies-a rule providing for bulletining procedure and in any event, the last clause of Rule 6 (a) 1, specifically refutes any idea that a guarantee is intended for positions of Iceman which are included in Rule 1, Section (d) for that clause reads:
"However, the provisions of Rule 17, Section (b) will not apply."
Further, the exact words of Rule 17 (b), which is the "guarantee" rule on this property, exclude hourly rated employes (laborers, icemen, etc.) from its purview. As ready reference, Rule 17 (b) reads as follows:
"RULE 17 (b) Nothing herein shall be construed to permit the reduction of days for regularly assigned monthly or daily rated employes below five (5) per week, excepting that this number may be reduced in a week in which holidays occur within the five (5) days constituting the work week by the number of such holidays; such reduction may be made only when a specified holiday is observed on an assigned work day of an individual employe.
NOTE: The foregoing paragraph shall also apply to regular hourly rated employes in the Stores Department, except those classified as laborers."
The only hourly rated employes of this schedule who come under Rule 17, Section (b) are those non-laborer employes in the Stores Department who are included by virtue of the Note to the Section. Therefore, the rule does not apply to Rule 1 (d) icemen or other hourly rated personnel.
In any event, in connection with Section (b) of Rule 17, your Honorable Board has ruled time and again that even where such rule applies the guarantee runs personally to the incumbent of a position rather than impersonally to the position. As early as Award 934 Referee Swacker ruled:
"The guarantee was, of course, intended strictly to run to the employe so that he might take advantage of his seniority. It would make a complete perversion of the language of the rule to construe it to mean that an extra or furloughed employe is guaranteed the opportunity to work any vacancy on a regular assignment, created by
the assignee himself, and that the carrier is obligated to fill such vacancy."
Award 1293 reaffirms the reasoning set forth in Award 934.
In Award 1412 this issue was again before the Board. In denying the claim, the Board cited Award 934 and remarked further
"That guarantee runs personally to the incumbent of a position rather than impersonally to the job itself. That quite aside, there is nothing in the Agreement which makes mandatory the filling of a position when its regular occupant absents himself as briefly as was the case here."
The same reasoning was adhered to in Awards 1538 and 1633, and in Award 4731 the Board said:
"Rule 27 (b) is clearly a guarantee of 6 days work per week to employes holding regular assignments, except in those weeks in which holidays occur or when reducing forces or abolishing positions. This Board has consistently held that the guarantee under the Rule runs to the employe and not to the position."
The Board's opinion in regard to the "guarantee" rule can no longer be in doubt. The Board has held many times that where the guarantee applies it runs personally to the employe and not impersonally to the position.
The Organization has had a good deal to say about a theory that Rule 6 (a) 3 makes the filling of positions mandatory. It will be noted that Rule 6-BULLETINING POSITIONS provides in the first paragraph for bulletining all new positions or vacancies and then hastens in Rule 6 (a) 1 to exclude from the bulletining requirement Rule 1, Section (d) positions, including position of Iceman which is the type of position involved in this case. Then Rule 6 (a) 2 goes on to exclude short term and special work positions from bulletining, after which Rule 6 (a) 3 sets forth how short term vacancies, thus excluded from bulletining under Rule 6 (a) 2, may be filled. Since Icemen and! other Rule 1, Section (d) positions were excluded from bulletin provisions. by Rule 6 (a) 1, it is obvious that Rule 6 (a) 2 and Rule 6 (a) 3 modifying: the bulletining requirements do not apply to positions with the scope of Rule 1, Section (d).
The Company is confident this Board will find in line with the preceding: that Rule 6 (a) 3 is inapplicable to the Rule 1 (a) position under discussion in this Docket, but wishes further to submit that even as regards positions where Rule 6 (a) 3 applies, it does not require that in the absence of an incumbent someone else must take his place or receive his rate of pay.
Rule 6 is designed to set forth the manner in which positions will be filled so as to give practical effect to the seniority rights contained in Rules 2, 3, 4, and 5 of the current Agreement. It was intended, exclusive of Rule 1, Section (d) positions, that the method of filling positions would be by bulletin, and assignment of the senior qualified employe filing application, so far as practicable. But it was recognized that when positions subject to bulletin were of short duration it would be impractical to fill them in this manner; consequently, provisions were made in Rule 6 (a) 2 and Rule 6 (a) 3 which permit filling them without bulletin.
Rule 6 has no bearing on the question of whether or not a position must be filled each and every day. It does not intend to guarantee that when a regular employe lays off for a day someone else will be placed on his position or receive his pay during the absence. Rule 6 merely provides that when new positions or vacancies are to be filled the following procedure will be followed:
1. Rule 1, Section (d) positions will be filled by simple notice without bulletin-Rule 6 (a) 1.
2. Bulletin positions or special work positions where vacancies are of short duration may be filled without bulletin-Rule 6 (a) 2.
3. In filling these short term vacancies without bulletin first preference will be given to available senior qualified unassigned employes-Rule 6 (a) 3.
4. If positions, other than Rule 1, Section (d), and special work jobs, are known to be of more than 30 days duration, they must be bulletined and filled in the manner laid down in Rule 6 (a) and (b).
That Rule 6 provides for the foregoing and not for any type of guarantee has been upheld by numerous awards of the Board on similar rules. For example:
Award 6889 (Referee Rader):
"We deem the change of the words 'may' and 'shall' in Rule 11-1 to relate to bulletining and not as contended for by petitioners. There is no specific provision in the Agreement which makes it mandatory to fill or not to fill temporary vacancies. In the instant case the situation arose by Mrs. Smith being absent and was not an affirmative act of Carrier. If employes intended this rule to read that Carrier was directed to fill such a vacancy then the proper wording was not inserted in the rule, as the sentence now reads it relates exclusively to the bulletining and does not include a mandatory direction that the position shall be filled."
Award 6142 (Referee Wenke):
"This is also a permissive rule. It permits Carrier to fill positions or vacancies of 30 days or less without bulletin. However, it does not require that Carrier must do so."
Award 1633 (Referee Blake):
"There is no requirement in this rule that temporary vacancies must be filled. It simply provides that such vacancies may be filled without bulletining."
Award 1412 (Referee Stone):
"The question presented is this: If an employe of his own volition lays off for but a single day, is the Carrier obligated by the Agreement to give the position and its pay for that day to another employe? On reason and authority the answer is an emphatic 'No' ".