Third Division
Paul Samuell, Referee
DISPUTE.-" Shall Mr. Glen Miller, senior unassigned refrigerator inspector, be compensated tit the rate of $177.00 per anouth during time junior refrigerator inspector, Mr. S. Francis, was employed on position :at Muscatine, Iowa, July Ist, 1933, to about August 1st, 19,33?"
FINDINGS.-The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier and the employes involved in this dispute are, respectively, carrier and employees within the meaning of the Railwny Diller Act, as upprovetl June 21, 1934.
This division of the Adjustment Board has jurisdiction over the dispute involved herein.
The parties to said dispute were given due notice of henring thereon.The case being dendloeked, Paul Sauamell was called to its Referee to sit with this Division.
An agreement between the parties dated January 1, 1931, exists. Said agreement specifically sets forth the scope of the employment as to employees, working conditions, ete. Refrigerator Inspector is covered by the agreement. Traveling Perishable Freight Solicitor is not covered by the agreement.
For a number of years prior to the season of 1933, it had been the custom of the carrier to establish position of Perishable Freight inspector at Muscatine, Iowa, at the rate of $177.00 per month during vegetable shipping season. The incumbent of said position was under the direction of the Superintendent of. Refrigerator Service, and cattle within the purview of tile agreement dated January 1, 1931. That particular employment tit Muscatine. Town. usually lasted :approximately from four to seven weeks, depending upon local conditions. After the closse of tile season of 1932, and oar or about June 25, 1933, the carrier created n new position of Traveling Perishable Freight Solicitor at the rate of $21:1,00 per month oat the pay roll of \-Ice President and Freight Traflic Manager, nod dais position was awarded to S. Francis, whose services to the tlrmtons year ball been engaged !it capacity of Perishable Freight Inspector at tile same point. Beginning with the vegetable season in July of 1933, the conditions with reference to refrigeration were somewhat changed in that the storage of natural lee and the refrigeration of cars was transferred from Muscatine, Iowa. to Silvis, Illinois. The carrier. therefore, did not appoint any person to tile position of perishable Freight Inspector at Aluscatine. The Traffic Department, however, created the new position of Traveling perishable Freight Solicitor, and it is claimed by the carrier that such Solicitor was not trader the supervision or direction of tile Snperiutelldeltt of Refrigeration Service but teas under the direction of the Freight Traffic officer, and that when this service was no longer needed in Muscatine territory, tile Incumbent was sent to other points on the railway for solicitation. It is claimed by the petitioner that with the exception of changing storage of natural ice and refrigeration of cars from Mnse:ltine to Silvis, that the duties perfornwrl by Francis here the wane in 1933 as in 1932 and previous years, and that the position was relatively and substantially the same In 1,933 as in 1932 and previous years, and that the title "Traveling Perishable Freight Solicitor" is a "misnomer ", and that the title was changed by the carrier martngolletat merely for the purpose of attempting to exclude the position from the agreement between the carrier and employees, thus denying seniority rights to the petitioner and clatonnt (lien Miller, who hall seniority rights over Francis.
if the position of Refrigerator Service Inspector or Perishable Freight Inspector had been changed to that of Traveling Perishable Freight Solicitor, and the class of work performed by the Traveling Perishable Freight Solicitor had been relatively and substantially the same, then obviously such action on the part of the carrier would be a violation of the rules or agreement existing between the carrier and employees dated January 1, 1931. On the contrary, if the position created by the carrier was that of a Solicitor of Perishable Freight and his duties were not substantially or relatively those ditties as were performed by the Refrigerator Service Inspector or Perishable Freight Inspector, then the claimant, Glen Miller, has no right to be compensated.
The record in this case is very meager, and this Division is of the opinion that the burden of proof rests with the petitioner and the claimant, and that the petitioner and the claimant have failed to prove that the position of Refrigerator Inspector and Traveling Perishable Freight Solicitor are in truth and fact one and the same position.