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Docket No. CL-14139
NATIONAL RAILROAD ADJUSTMENT BOARD
Herbert J. Mesigh, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES PACIFIC FRUIT EXPRESS COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5394) that:
(a) The Company violated the Agreement between the parties effective June 1, 1952, when on August 26, 1962, at Roseville, California, it failed to call Iceman P. E. Tafoya to a vacancy on a position of Iceman; and,
(b) The Company shall now be required to allow Mr. P. E. Tafoya eight (8) hours' compensation at pro rata rate of Iceman.
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement bearing effective date June 1, 1952, (hereinafter referred to as the Agreement) between the Pacific Fruit Express Company (hereinafter referred to as the Company) and its employes represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes (hereinafter referred to as the Employes) which Agreement is on file with this Board and by reference thereto is hereby made a part of this dispute.
1. On August 26, 1962, Mr. J. L. Martinez, regularly assigned to Iceman Position No. 5487, hours 3 P. M. to 11 P. M., laid off account illness. The Company did not fill the vacancy notwithstanding the fact that Mr. P. E. Tafoya (hereinafter referred to as the Claimant) was the senior qualified unassigned employe available, and entitled to be called thereto under the clear and unambiguous provisions of Rule 6(a)3, among others, of the Agreement.
2. By letter dated August 27, 1962, Mr. Milton W. Lockwood, Local Chairman, filed claim with Mr. E. J. Nelson, Plant Manager, for eight hours' pay at Iceman's rate alleging violation of Rules 6(a)3, 28 and 30, among others, of the Agreement.
On September 6, 1962, Mr. Nelson denied the claim based on the following reasons:
"Maximum crews employed. On August 19th we received cancellation of main orders (Initial icing of empties for Mendota melons).
Bulletins posted Aug. 19th, Aug. 20th, Aug. 25th and Aug. 28th abolishing total of 34 jobs (6-7-17-4). Management would have worked Mr. J. L. Martinez, but believe it unreasonable to fill a vacancy created by the assigned employe himself when there was no work for the man."
which reasons, the Employes submit, are plainly based on moral philosophy, and not related in any way whatsoever with the Rules governing the working conditions of the employes covered by the Agreement.
Thereafter, the claim was appealed by the Employes' General Chairman, Mr. James E. Weaver, to Mr. T. D. Walsh, Company's Manager of Personnel and the ranking officer designated to receive and handle disputes of this nature.
Following an agreed-to extension of time, by letter dated November 14, 1962, Mr. Walsh denied the claim, his reason being that maximum crews were employed on the date in question, and no violation occurred when it did not call Claimant to the vacancy.
POSITION OF EMPLOYES: Rules of the Agreement here involved, pertinent portions thereof, are:
(a) 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 . . ."
"ICE PLANT AND PLATFORM FORCES-REGULAR
(a) The maximum number of regular assignments consistent with the requirements of the service will be established.”
Extra boards regulated by the local supervisors and local chairmen will be maintained for Class 3 employes at each point."
Iceman Position No. 5487 was established under the provisions of Rule 28 and, at the time of this dispute, was in existence fully in accordance therewith. The Company considered it necessary to maintain it to meet the requirements of the service. This is fully supported by Plant Manager E. J. Nelson in his letter of September 6, 1962, (pertinent portion hereinbefore quoted on page 2) where he pointed out that cancellation of main orders forced reduction of six (6) unnecessary positions on August 19, seven (7) on August 20, seventeen (17) on August 25, and four (4) on August 28. Your learned Board will note that while 17 positions were abolished on August 25, no positions were abolished on August 26, the day here involved and, notwithstanding the Company found it necessary to further reduce the number of positions by 4 subsequent thereto, it did not abolish the position here in dispute.
Accordingly, reasonable minds can only come to the inescapable conclusion that the Company considered Position No. 5487 within the maximum number of regular assignments necessary to meet the requirements of the service on August 26, 1962, the date claimed, and Plant Manager Nelson's plea that "there was no work for the man" can only be construed as a self-serving assertion purposely designed in an attempt to defeat the claim.
Rule 6(a)3 unequivically provides that vacancies such as here involved shall be filled whenever possible by the senior qualified unassigned employe who is available.
Under Rule 30 Claimant on August 26 was the senior qualified unassigned and available employe on the extra board.
Rule 6(a)3, 28 and 30, read and considered together, and viewed with crystal clarity, plainly set forth that the Company was obligated thereunder to fill the vacancy on Position No. 5487 by the senior qualified unassigned available employe, the Claimant.
The Company's position that maximum crews were employed on the day in question, which was its reason for denying the claim, it patently untenable in view of the fact that Position No. 5487, a part of the maximum number of regular assignments on said day, was left unfilled.
The Employes has conclusively proved that the Company violated the Agreement as claimed and respectfully urge your honorable Board to so hold.
CARRIER'S STATEMENT OF FACTS: 1. There is in evidence an Agreement by and between the Company its employes represented by the Organization bearing an effective date of June 1, 1952 (hereinafter referred to as the current Agreement), a copy of which is on file with the Board and is, by this reference, made a part hereof.
2. During August 1962 Iceman J. L. Martinez, a Class 3 (hourly rated laborer category) employe, held an assignment at Roseville, California ice deck working the 3:00 P. M. to 11:00 P. M. shift.
3. On August 26, 1962 he failed to report to work, did not notify his Supervisor he would be absent, and did not obtain permission to remain away.
4. The General Foreman, the immediate supervisory officer over the hourly rated iceman pool, ascertained that employe Martinez was absent well after the start of the shift. Upon so ascertaining he decided not to seek a replacement for the man since icing of empty cars for Mendota melon shipments had just been cancelled by shippers, leaving 34 Icemen on hand without any work for them to do. Also, as no report had been received from Iceman Martinez, it was assumed he might show up sooner or later throughout the shift.
5. Subsequently the Organization presented claim on behalf of one P. E. Tafoya, another Iceman at Roseville who himself had been AWOL since August 24, 1962. The claim requested one day's pay at Iceman's rate for August 26, 1962 on behalf of employe Tafoya alleging the Company should have attempted to telephone him to take the place of employe Martinez who had not reported.
As part of its claim presentation the Organization alleged employe Martinez was ill the day claimed despite full knowledge that he did not so report