lease within twelve (12) consecutive hours, and also for all time fit excess of twelve (12) consecutive hours computed continuously from the time first required to report until final release. Time strait be counted as continuous service in all cases where the interval of release from duty does not exceed one (1) hour.

"(b) Exceptions to the foregoing paragraph shall be made for individual positions when agreed to between the Management and duly accredited representatives of the employes. For such excepted positions the foregoing paragraph shall not apply.

"(c) This rule shall not be construed as authorizing the work of split tricks where continuous service is required.

"(d) Intermittent service is understood to mean service of a character where during the hours of assignment there is no work to be performed for periods of more than one (1) hour duration and service of the employes cannot otherwise be utilized.

"(e) Employes covered by this rule will be paid not less than eight (8) hours within a spread of twelve (12) consecutive hours."

"Rule 20. Overtime.-No payment will be made for overtime worked except by direction of proper authority or in cases of emergency where such advance authority is not obtainable.

"Except as provided in Rule 16, time in excess of eight (8) hours, exclusive of the meal period, on tiny day, will be considered overtime and paid on the actual minute basis at the rate of time and one-half."

"RULE 23. 9modalp and 71ohday Work- Work performed on Sundays and the following legal holidays-namely, New Year's Day, Washingtons Birthday, Decoration Day, Fourth of July, Labor Day, Thanksgiving Day, and Christmas (provided when any of fit(, above holidays fall on Sunday, the day observed by the State, Nation, or by proclamalion shall be considered the holiday), shall be paid at the rate of time and one-half. except that employes necessary to the continuous operation of the Railroad and who are regularly assigned to such service will be assigned one regular day off duty in seven, Sunday if possible, alnl if required to work on such regular assigned seventh day off duty will be paid at the rate of time and one-half time; when such assigned day off duty is not Sunday, work on Sunday will be paid for at straight-thne rate."

The petitioner contended that the assignments in controversy were split tricks and prohibited by the agreement; the carrier, [bat the assignments were properly made tinder the rule permitting intermittent service.

CONCLUSIONS OF THE DIVISION.-Upoll the whole record and all the evidence, the Division arrives at these conclusions;

(1) Service of the character usually performed by the claimants herein was being continuously performed during their hours of assignment within the meaning of Rule 16 (d) of tile agreement between the parties.

(2) The assignments involved in this controversy were, accordingly, lit violation of Rule 16 (c).

(3) The employees, under Rules 16 and 20, are entitled to be compensated in accordance with their claim.

AWARD

DISSENT FROM AWARD NO. 200, DOCKET NO. CL-229

1. The findings and conclusions are indefinite in that they fail to disclose the circumstances or conditions under which the intermittent assignments complained of were made, and furnish no sufficient basis for the award.

2. The award in its entirety is inconsistent with tile facts and evidence before the Division, and does not reveal with sufcient clarity the language of tile rule upon which it depends, nor tile understanding or interpretation of the

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same reached by the referee and by him deemed sufficient to sustain the claim.

The contentions of tile parties are disposed of in one brief paragraph in the following language:

"The petitioner contended that the assignments in controversy were split tricks and prohibited by the agreement; the carrier, that the assignments were properly made under the rule permitting intermittent service."

Such a restricted eonteution by the petitioner is not found in the submission before this Board. Tile petitioner sets forth his contention with respect to this aspect of the alleged violation of the rule in the following language:

A. "We contend that the intermittent service rule is designed and so worded as to prevent split trick assignments being worked with the exception of isolated instances. We construe the rule to mean that split tricks are not permissible except where an employe assigned to such service is the only employe at that point performing a specific class of work, and there would be no work to perform for periods of one hour or more."

B. "The Brotherhood holds that intermittent service is not permissible except where the emifo?le assigned to such service is the only employe at a particular point performing a specific class of service, or, if there be more than one employe performing the same service none of the others perform the same service (hiring the period of intermittent release." [Italics added.]

A further contention of tile petitioner is that service at the Minneapolis Passenger Station is continuous throughout the twenty-four hours daily, which ire states at various places in his submission in the following language:

C. "Service is continuous at Minneapolis Passenger Station, as evidenced by the fact that during the interval of release involved in this dispute, 10::70 a. in. to 3: 00 p. m., there is work performed and employes assigned to positions 102, 120, 130, 137, 103, 100, 113, llu, and 123 are working all or a portion of such periods of release."

D. "The information also indicates that baggage mailroom employes, Minneapolis Passenger Station, are and have been recognized and treated as employes necessary to the continuous operation of the cmrricr. * * *" [Italics added.]

E. "We admit the employes performed no work during tile o8-duty period. However, this does not serve to deny payment claimed, because employes are released during period when there is work performed, continuous operation, being required, and split tricks under such circumstances are in violation of rules agreement." [Italics added.]

F. "In conclusion, manifestly, the words 'where continuous service is required', can wily have reference to the class of scork and not to the individual worker." [Italics added.]

And here tire petitioner states his own definition of intermittent service in the following language:

G. "The definition of intermittent service must be construed in connection with the exception which prohibits 'split tricks' where continuous service is required. Intermittent service being permissible only where there is an intermission of more than one hour during which no work is performed by any employe." [Italics added.]

Thus, nowhere does tile petitioner make the unconditioned averment that "split tricks" are prohibited by the rule as would appear from the statement of his contention in the findings of this award.

Conclusion (1) of the award misleads to the extent that it conveys the impression that work of the class or character performed by the claimants was being performed continuously during the ten or twelve hour spread of the claimants' tours of duty, whereas petitioner's own exhibit shows the contrary to be the fact, with the possible exception of position 110, and as to that position there is no affirmative evidence that the same is not true. It falls squarely under tire italicized portion of the quoted paragraph B above. There is not other position of the same classification or rate of pay.

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Position No. 124 is that of railrrorl until clerk. llis tour of duty, within a spread of cdeven hourb, is so arranged as to cover the morning and afternoon tram arricr;ls and departures. Oil his morning tour, 241 trains arrive and depart; on his afternoon tour, 13; and durilil the interval between there is one each arriving ;tad departing. No showing: whatever is made that anyone is assigned to or does sort, dispatch, or handle railroad mail (luring his period of release from 12 in. to 3:00 1t. 111. Thore is no other position of this elassifitmtion or rate of pay.

Position No. 6 is that of caller ant] sorter. 'there are ten such positions, one of which is assigned a tour of dilly 12 midnight to 8:30 n. ill.; two assigned 'l: 00 p. m. to 11 : 30 p. in. ; five assigned 3: 30 p. ni. to 13 illithlight, and one front 4 : 30 p. lo. to 1 : (N) a. al. 'rbus it is sdumil that node of these assignments cover the period from 8:30 a. in. to 2:30 11. ni., nit which falls tile four-hour interval of release on position No. 6. During this intervaIt IIPre is a complete cessation of tvork of the class and character performed by the incumbent of position No. 6.

Positions Nos. 120. 15, and 20 are those of baggage and mail trucker. There are seven siodl full-time positions and three [tart-time positions. Two of tile part-tinge positions :Ire assigned front 0:30 it. iii. to lo: 30 It. in., and one front d: 45 p. in. to 10: 4·i 1t. in. Three positions are assigned from 3: 00 p. in. to 11:311 1). in.; one front 3:0011. in. to 12 midnight, and one front 3:30 p. Ill. to 12 ?aid

'light. The intermittent llssiglinients ill this classification are Aiomi in tile award, and it will Ile seen that no employe in this classification is working rittriltg the interval of release oil those positions, except that it, tile morning positions 15 anti '=0 continue thirty minutes after position l2l) is relea=etl, and in tile afternoon those two positions loo not restulle until thirty nlilluter after 1:osition 120 has restuned. Again, in this classification, for it perhxl of three hours and thirty minutes, from 11:00 a. m. it1 2:30 p. in., there is ;t complete cessation of work.

That is the evidence before ibis Division. There being no eniployes ellgagal in the class or character of work to which intermittent assignments tire made during the intervals of relief of employes oil split tricks, there could be it(,

ervice of that clolraeter performed unless it were by employes engaged in other .^haracter of work. still no word of evidence to that, effect was offered before this Divisioli. Conclusion (1) is, therefore, in error.

Taking tile award as a whole, one gains the impression: first, that tile Referee does not recognize that the two ha~llts "intermittent service", its relate[ to assignments, alnl "split trick" iocan the s:mle thing; second, that lie does not bike eqgniuince of the evidence allowing that the class of work upon whit-h the claimants were engaged wile not being performed during their intervals of release, but bases ills conclusions and award upon II concept or Interpretation of the words "continuous service" as used in the lute, which he falls to reveal or explain, and odiicli is indisponsable to its suppol'I in view of the plain lnngnage of paragraph (d) of the rule, reading:

"Intermittent service is understood to menu service of a character where during tile hours of assignment there Is no tvork to be performed for periods of more titan one (1) hour dnratton and service of the employee cannot otherwise lie utilizad." CIlalics added.]

The award in this case is inconsistent with file award of this Division No. 100 in Docket No. 156. In that case the carrier assigned certain baggage masters or baggagemen to split tricks, amt during the intervals of their release required the ticket agents and janitors to perform their work. This Division said ill part:

"Baggage service leas assigned to be performed by olhe·: cmployes (ticket agents and janitors) during intervals of release of those assigned under rule 48, intermittent service and, therefore, tile baggage service at Greenfield, Mass., was not intermittent within the meaning of rule 48."

This Division also passed on tlds question in its award Nos. 202 in Dockot 223, and 2193 in Docket 224.

The U. S. R. L. B., in its Decision 3864, Docket No. 4501, passed upon this question in a case presented to it in language very sitoilar to that used in the instant case. The einplo.ves there coniterldeil that tile intermittent service rule was not properly applied in assigning night ticket clerk and night Irtggagenien to internitlent wrVive, because file station 111 question, Vile of tile larger onesi oil

1115

the lines of the carrier involved. employed upwards of forty employes coming tinder the clerks agreement, and there was work to be performed durlnp the interval of release of the employes assigned to intermittent service. The Labor Board denied the claim.

I hold that continuous service, as referred to in this rule, means continuous work of the class or character of that performed, or to be performed, by the employee assigned to intermittent service, and that the language amt history of the rule does not support any other interpretation. Therefore, the assignments complained of in the instant case were proper.

(S.) GEn. H. DUGAN.

The nndershnvd concur in the above dissent A. H. JONKS. L. O. MunoocK. C. C. C6oK. R. 11. ArmsoN.