"Claim of General Committee of The Order of Railroad Telegraphers in behalf of agent at Southwest City, Missouri, for pay for one hour overtime worked 5:60 p. m. to 6:60 p. m., May 14, 7917; a call for two hours worked 5: 00 p. in. to 7: 00 p. nt., on Sunday, May 15, 1927, and two hours overtime worked 5:00 p. m. to 7:00 p. m., May 16, 1927, account performing necessary work, such as billing and advising rrisco Trafnmaster by wire, to insure prompt torwarding of carload express shipments of strawberries."
FINDINGS.-The Third Division of the Adjustment Board, upon the whole record and all tile evidence, finds that:
The carrier and the employees Involved in this dispute are respectively carrier anti employees within the meaning of the Railway Labor Act as approved June 21, 1984.
This Division of the Adjustment Board has jurisdiction over the tllspute involved herein.
The parties to said dispute were given due notice of hearing thereon.As result of it deadlock, Lloyd K. Garrison was called in as Referee to sit with the Division as a member thereof.
The railroad station agent at Southwest City, Missouri, is required by the Carrier, under the terms of the Express Operations Agreement between the Carrier and Railway Express Agency, Inc., to serve as agent for the Express Company tit the railroad station at Southwest City.
On May 14, 1927, a week day, carload express shipments of strawberries were delivered at his station for prompt movement. This shipment of highly perishable food required the agent's immediate attention to arrange for prompt movemeuC and billing, causing him to remain continuously on duty for one hour ht excess of his assigned eight hour tour of duty.
On May 15, 1927, a Sunday, on which day the agent is not assigned to work, similar shiprncalts of strawberries were delivered at his station for prompt handling. The shipper notified the agent at his home that these shipments were ready for movement. The agent reported for duty on this day at 5:00 p. m. and worked until 7:00 p. in. In arranging anti billing this movement by express.
On May 16, 1927, a week day, similar shipments were delivered for express movement which likewise required the agent to remain continnoml> (,if duty for two hours in excess of his eight hour tour of duty.
Claim for paytnerlt as above set forth teas made by the employees. Tllr Carrier declined payment
The Agent is the employee of tile Railroad Company. He is not tile employee of the Express Company, but merely performs services for the totter on a commission. These commissions are by express terms of the Agreement (See Article %IV), a part of the agent's compensation for his services to the Railroad, and the amount of his wages from the Railroad are determined (subject to a certain minimum) by taking into account the amount of probable commissions. Therefore, when the agent handles express he is doing what the Railroad Company contemplated and is benefiting tile Railroad Colllpally as well as file Express Company.
"(7) For continuous service tifler regular working hours. employees will be paid time and one-half on the actual minute basis. Employes shall not be required to work more. than two (2) hours without being permitted to go to nerds. Time taken for meals will not terminate the continuous service period and will be paid tap to thirty (30) minutes. Employes nnttHed or called to perform work not coutinuous with the regular work Joel hrd will be allowed a minfnuin of three (3) hours for two (2) hours' work or less, and if held on (Lrty in excess of two (2) hours, tithe and one-half frill be allowed oil the minute basis."
The question is whether the services performed iti this case outside of assigned working hours entitle the agent to extra cornfensation under tile foregoing rule. The work was work which bad to be performed whets it was performed. It consisted of handling perishable fruits. The rules of the Railroad (see particularly Rules 1060 and 1265, of the Transportation Department of the Railroad) make it tile duty of agents to handle perishable property in such a way as to prevent its spoiling or injury. The evidence indicates that there were in effect at the time of the services it) question, written instructions front the Tralnmaster to the agents to telegraph trial before midnight each day information regarding the carloads of fruits and vegetables loaded on that (lay. If tile agent in this ease followed these instructions lie would have had to scud his wire after the regular working hours and on Sunday because the perishable fruit arrived and had to be handled after working hours and oil Sunday. It may b, assumed that the agent complied with his instructions in the absence of a contrary showing, bill the issue is immaterial because it is clear that tire agent would have been held responsible by his employer for failure to handle tile property when it arrived. and that in handling it be was obligated to do what his employer expected him to do. Under these circumstances he should be compensated by his employer for extra time spent. See U. S. Railroad Labor Board decisions No. 3966 (docket 4673) amt 320§ (docket :330!7), which are in point and sustaiir the conclusion herein arrived at.