The Second Division consisted of the regular members and in ad
dition Referee Adolph E. Wenke when the award was rendered.
SYSTEM FEDERATION NO. 101, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Carmen)
DISPUTE: CLAIM OF EMPLOYES: 1. That under the current agreement:
2. That accordingly the Carrier be ordered to compensate the aforesaid employes each in the amount of 8 hours' pay at the applicable time and one-half rate for each date specified above that they were denied the right to work.
EMPLOYE'S STATEMENT OF FACTS: At the Everett Train Yard at Everett, Washington, the carrier on Sundays prior to and after December 25, 1954 and January 1, 1955, employed two (2) inspectors and one (1) helper on the first shift, two (2) inspectors and no helpers on the second shift and two (2) inspectors and one (1) helper on the third shift.
On Christmas Day, December 25, 19'54 and New Year's Day, January 1, 1955, the carrier reduced the force to one (1) inspector on the first shift and one (1) inspector on the second shift, and one (1) inspector on the third shift.
The dispute was handled with carrier officials designated to handle such affairs who all declined to adjust the matter.
The agreement effective September 1, 1949, as subsequently amended, is controlling.
As further evidence of the understanding of the carrier, we quote herewith in full, Mr. Anderson's letter of November 29 quoted in part in the memorandum, and direct attention to the language therein in which it is stated:
In the third paragraph it will be noted that we directed attention to our feeling that a more equitable method of handling could be arrived at by permitting the senior employes in each shift, in the spread of whose assignment the holiday would fall, to work such holiday when service thereon was necessary and requested that further consideration be given to this particular matter at the next meeting of the system federation.
Such consideration was given which later resulted in the agreement being reached designated as Memorandum No. 29 which was later revised as of February 15, 1955.
Everthing, therefore, it will be noted, relative to this particular Memorandum Nc. 16, had to do with the distribution of overtime only and had nothing whatsoever to do with providing any guarantee for any employe or employes.
The carrier holds the employes, therefore, are attempting to stretch an agreement covering only the distribution of overtime into a guarantee rule which was at no time the intent of the carrier, and we do not believe, at the time it was issued, the intent of the employes.
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 organization contends Car Inspectors Walter Brown, George Magaflin and James L. Bussing, together with Carmen Helpers Ingemar Olson and Roy Osborne were all improperly denied the right to work on Saturday, Christmas Day, December 25, 1954 and that Car Inspectors Thomas Fox, Walter Brown, Vernon Bingham and Miles S. Neisinger, together with Carmen Helpers Irgemar Olson and Roy Osborne were all improperly denied the right to work on Saturday, New Year's Day, January 1, 1955. Because of that fact it asks that we order carrier to pay each of the claimants for eight (8) hours at time and one-half the applicable rate on either or both of said days, as the claim made may indicate. Saturday was a workday of each claimant's regularly assigned work week and they were assigned to and engaged in performing services which carrier found it was necessary to have performed on seven (7) days each week.
The facts are that at its Everett Train Yard, Everett, Washington, carrier on the Sundays immediately preceding and subsequent to both Christ-
mas and New Year's Day, employed two (2) inspectors and one (1) helper on the first shift, two (2) inspectors on the second shift and two (2) inspectors and one (1) helper on the third shift whereas, on both Christmas and New Year's Day it employed only one (1) inspector on each shift. Carrier paid each of the claimants for eight (8) hours at the applicable straight time rate for Christmas and New Year's Day as Section 1, Article II of the August 21, 1954 Agreement provides it shall.
It is contended carrier, by reducing its forces on Christmas and New Year's Day below that employed on Sundays immediately preceding and subsequent thereto, violated an agreement it had entered into with these employes in 1950 and which agreement the employes claim is still in force and effect.
This docket presents the same questions as were raised in Docket 2013 and which were answered in our Award 2378 based thereon. Since both dockets involved the same carrier, organization and agreement, what was said and held in Award 2378 is here controlling. In view thereof we find the claim should be allowed except that the claim of car inspectors for New Year's Day must be limited to three (3).
Claim sustained except that the claim made for New Year's Day is limited, as to car inspectors, to three.
DISSENT OF CARRIER MEMBERS TO AWARDS 2378, 2379,
2380, 2381, 2382, 2383
The claimants were not required to work Thanksgiving Day, November 25, 1954, a holiday requiring time and one-half pay when worked. They each were paid one day at straight time under the National Agreement of August 21, 1954. No other employes were used on claimants' alleged holiday assignments. No provision of the Agreement requires the carrier to work regularly assigned employes on holidays when their services are not needed The claims should have been denied under the authority of our Awards 1606, 2070, 2097, 2169, 2212, 2325 and 2353.
In order to give the claimants two and one-half days pay because they were not required to work on the holiday in question, the majority relies on what they term is a "verbal agreement" allegedly made by the Carrier some time in 1950 that "forces used on holidays would not be reduced below the number worked on Sundays." There is no such "verbal agreement."
The record shows that a conference concerning the application of the 40-Hour Week Agreement the Carrier's General Superintendent of Motive Power stated he thought as many employes generally could be used on holidays as on Sundays and he would try to do so. Obviously, such a statement is not an agreement, "verbal" or otherwise. It was simply an expression of intention to give some work to some employes; it was indefinite; it was not reduced to writing. It had none of the requisites of an agreement and was neither accepted by the employes nor offered by the carrier as such. All of the arguments that such expression of intention constituted a "verbal agreement" were considered and rejected by this Division in Award 2097 2383-6 413