The Second Division consisted of the regular members and in
addition Referee Adolph E. Wenke when award was rendered.
SYSTEM FEDERATION NO. 100, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Firemen & Oilers)
DISPUTE: CLAIM OF EMPLOYES: That the assignment of machinist helper to fill coal pocket vacancy from 7 A. M. to 3 P. M. on August 13, 1946, was improper under the current agreement, and that accordingly the carrier be ordered to compensate Coal Pocket Laborer Louis Ulterale therefor in the amount of 8 hours at the time and one-half rate.
EMPLOYES' STATEMENT OF FACTS: Louis Ulterale, hereinafter referred to as the claimant, was employed by the carrier from 7 A. M. to 3 P. M. at Secaucas, New Jersey, as a laborer to regularly perform coal pocket work. His seniority date is December 23, 1930.
Tuesday, August 13, 1946, was the claimant's assigned day off. The carrier made the election to fill this vacancy, and without retaining or calling the claimant to do so, the carrier selected and assigned Machinist Helper Joseph Piszko to fill said vacancy, or perform coal pocket work from 7 A.M. to 3 P. M. on August 13, 1946.
These factual operations at the coal pocket from 7 A. M. to 3 P. M. on August 13, 1946, are substantiated by copies of the statements submitted, identified as Exhibits A, A-1 and A-2, signed, respectively, on August 15 and 16, 1946, by coal pocket Laborers William Franke and V. Morelli and Machinist Helper Joseph Piszko.
POSITION OF EMPLOYES: It is submitted that the words "and coal pocket men" in Rule 1 (a) of the collective bargaining agreement brings coal pocket work, such as was performed by Machinist Helper Piszko from 7 A. M. to 3 P. M. on August 13, 1946, specifically under the terms of the aforesaid agreement, not only on certain days of the week but 24 hours a day, 365 days per year.
Moreover, no emergency existed on August 13, 1946, which authorized or warranted the carrier to disregard the calling of this claimant to protect his own six-day assignment on the seventh day, in lieu of using Machinist Helper Piszko, and it is predicted that the only reason that this was done was for the purpose of evading the payment of the time and one-half rate to the
There is no merit to this claim and it should be denied by the Second Division because:
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 record establishes that on August 13, 1946, Machinist Helper Joseph Piszko was assigned to and did, during the hours of 7 A. M. to 3 P. M., perform the duties of a coal pocket laborer. This work is within the scope of Rule 1(a) of the parties' agreement.
To support its action the carrier relies upon Rule 1(b) of the agreement. It provides:
"Incidental," as therein used, means work occurring in the course of and in connection with the principal work of a position but which is only a subordinate part thereof.
The work here performed by Machinist Helper Joseph Piszko was not incidental to Piszko's regular work and therefore not within the scope of Rule 1(b). Consequently it was performed by him in violation of Rule 1(a) of the agreement.
Coal Pocket Laborer Louis Ulterale was eligible to perform this work and would have been available to do it had he been called. He is therefore entitled to have the claim sustained, the carrier having made no effort to call him.
We are, however, of the opinion that this claim should be sustained at the pro rata rate only. While it is true that if claimant had performed the work on his day off his rate would have been time and one-half, however, the penalty rate for depriving an employe of work is the pro rata rate of the position.