The Second Division consisted of the regular members and in
addition Referee James P. Kiernan when the award was rendered.
circumstances, even if it could be shown that the fourth paragraph of Rule 5-B-1 was not applicable to the facts herein. That being so, the most time that claimants could claim under any circumstances would be for two hours from 5:00 A.1VL to 7:00 A.M. from August 12, to October 31, 1955 and for one hour from 6:00 A.M. to 7:00 from October 31, 1955 to December 26, 1956.
With respect to Item No. 3 of the employes' claim the carrier submits that there is no specific rule of the contractual agreement which would support a request for this type of a compensation claim, consequently, it should be denied in its entirety. Moreover, even if it were to be found that the agreement could be interpreted to support such a ridiculous claim the same factual situation applies as was set forth hereinabove, hence the only time which the claimants can properly claim would be for two hours i.e., from 1:00 P.M. to 3:00 P.M., from August 12, 1955 to October 31, 1955, and for one (1) hour i.e., from 2:00 P.M. to 3:00 P.M. from October 31, 1955 to December 26, 1956.
The carrier submits, therefore, that even assuming a violation of the applicable agreement in the instant case, which the carrier strenuously denies, the claimants would only be entitled to the compensation as set forth immediately above.
It is respectfully submitted that the National Railroad Adjustment Board, Second Division, is required by the Railway Labor Act, to give effect to the said agreement, which constitutes the applicable agreement between the parties and to decide the present dispute in accordance therewith.
The Railway Labor Act, in Section 3, subsection (i), confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out of "grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions." The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the agreement between the parties to it. To grant the claim of the employes in this case would require the Board to disregard the agreement between the parties hereto and impose upon the carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to this dispute. The Board has no jurisdiction or authority to take any such action.
The carrier has established that there has been no violation of the applicable agreement, and that the claimants are not entitled to the compensation which they claim.
Therefore, the carrier respectfully submits that your Honorable Board should deny the claim of the employes in this matter.
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. 2913-17
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimants herein contend that they were improperly assigned. The assigned hours was from 5:00 A.M. to 1:00 P.M., Monday through Saturday. A relief man was assigned for Saturday. The work included servicing, inspecting and making minor repairs to yard diesel engines at various points in the Buffalo Switching District. A fuel truck is used and it is operated by a chauffeur under another working agreement.
The work is that which is ordinarily performed at the roundhouse, and/or fueling station. There are three shifts employed at the enginehouse, namely8:00 to 4:00, 4:00 to 12:00, and 12:00 to 8:00. Lunch time being included in the eight hour period. Claimants also had lunch time included within their eight hours work. Claimants are under the jurisdiction of the Enginehouse Foreman, and on that seniority roster. Rule 5-D-1 in part reads:
Exceptions to this rule will be necessary when the normal starting times are varied from as indicated in Rules 5-B-1 and 5-C-1 (Rule 5-D-2). Rule 5-C-1 reads:
The claimants herein report for work at the Enginehouse and quit work at the same point. They work a straight eight hour shift, with lunch period allowed. They perform the same kind of work as others of the same class or craft in or at the enginehouse. They are part of a three-shift operation of eight hours each. We cannot hold that this is such an assignment as would come within the exceptions as referred to in Rule 5-D-2. An employe on an assignment such as we have here, qualifies for the overtime rate for the hours assigned before 8:00 A.M. He would also qualify for eight hours after his regular starting time, that is 8:00 A.M.
The record is not sufficiently clear to establish the amount of the monetary claim due the claimants, and that question is remanded to the parties for further consideration, in accordance with the rules and this finding herein.
The majority find that the operation of the fuel truck was part of the three-trick operation at the Ebenezer Enginehouse, and refuses to permit an exception to the general starting time rules. This finding, (which is apparently based on the facts that the fuel truck was subject to the jurisdiction of the enginehouse foreman, and that machinists assigned to it reported at the enginehouse) is contrary to other facts of record, which show that the operation of the fuel truck and the performance of work by employes assigned to it took place outside at various yards and independently of any operations being carried on in the enginehouse. Fueling of engines took place only on one trick and under operating requirements which justified a departure from normal one-trick starting times. The arrangements for claimants' lunch periods are not relevant to the question of whether their assignment was a one-shift or part of a three-shift operation. The award integrating this assignment with the three-trick enginehouse operation is in error.