DISPUTE: CLAIM OF EMPLOYES: That Homer W. Rogers should be compensated for eight (8) hours at punitive rate for work performed by A. N. Dunsmore in Concord enginehouse, January 6, 1940.
JOINT STATEMENT OF FACTS: At Concord, N. H. the locomotive back shop and enginehouse are in separate seniority districts.
Assistant Foreman Silva, Concord enginehouse, was allowed one of his two days a month off on Saturday, January 6, 1940.
Machinist Raymond C. Hilliard, seniority date as machinist December 6, 1927, Concord enginehouse, worked in place of Silva and Hilliard's job,. 11:00 P. M. to 7:00 A. M., was filled by A. N. Dunsmore, machinist, with seniority date of October 3, 1938, in Concord enginehouse shop.
Homer W. Rogers, machinist, Concord enginehouse, seniority date October 6, 1922, claimed one day at time and one-half because he was not used in place of Hilliard instead of Dunsmore.
Rogers, who has a regular assignment on 7:00 A. M. to 3:00 P. M. shift, worked that shift January 5 and January 7, 1940. Saturday (January 6, was Saturday) was his regular day off.
Management offered one day at straight time in settlement of the claim which was declined by the committee.
There was in full force an agreement between System Federation No. 18, Railway Employes' Department, American Federation of Labor and the Boston and Maine Railroad, which became efective April 1, 1937. Rule 25 of that agreement reads as follows:-
must be subject to censure, for a roan who is entitled to certain work and to penalize the carrier if it is not given to him, must himself be penalized if not available.
The work done by Dunsmore on 11:00 P. M. to 7:00 A. M. shift consisted of two hours inspection and six hours repairs on diesel switcher 1162.
Rogers was not qualified to do this work (see letter of general superintendent of motive power to general chairman machinists' committee dated February 27, 1940, filed as "Employes' Exhibit No. 1"), while the man used (Dunsmore) was a, qualified rail motor car maintainer and had had considerable experience on diesel locomotives.
There is no rule of agreement of April 1, 1937 which states that the senior machinist with a regular assignment shall be used in place of some other regular assigned man who is off.
There is no rule, or agreed upon interpretation, that pays any man time and one-half when he performs no service whatever, as in this case.
Under these circumstances the carrier considers the offer made to have the case disposed of on the property was liberal. It is withdrawn as it was not accepted.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe 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 carrier obviously recognized a violation of the rules of agreement in offering to pay Machinist Rogers pro rata rate. However, in recognition of all the circumstances and the time required for service, if Rogers is entitled to any compensation he should be allowed pay at time and one-half.