Third Division
Willard E. Hotchkiss, Referee
FINDINGS.-The Third Division of the Adjustment Board, upon the whole record and all the evidence, finals that:
The carrier and the employee involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdicf ion over the dispute involved herein.
The parties to said dispute were given fine notice of hearing thereon.As a, result of a deadlock, Willard E. Hotclrklss was called in as Referoe to sit with the Division as a member thereof. Prior to January 17, 1933, regularly asalgecd yard clerks performed overtime
"DCra Sia: Referring to your letter of January 11 in regard to time claimed by Mr. D. O. Mikols, extra yrnd clerk, at Mus%og;N·I·, :tccouat regular assigned yard cleric In some cases called in advance of regular work period to perform service.
"It is the position of the comllnny that the present pr:2ctico is not in violation of Article 31 of the working agreement, however, if it is four desire that extra man be called !it cases of this kind and paid in the same manner as the regular man, with view of being hnlpi'Irl to the man protecting the extra work at the yard office and its a temporary' matter, we are agreeable to calling the extra man for this work when noclhdd.
"In the future until further advised, in case clerk is needed in advance of the regular starting time, please arrange to call the extra man for this work instead of the regular man.
"This Special temporary agreement was agreed to by myself and committee as a temporary measure, and I am therefore advising you that hereafter this temporary understanding is hereby withdrawn and cancelled and should be considered as no longer being in effect, and we will on and after this date, April 22, 1935, expect you to comply with the provisions of our agreement. Rules 27 and 34, which require the payment of a minimum day of Eight (8) hours for service performed by clerks on week days, and a minimum of Six (6) days' work per week except in weeks in which holidays occur.
The petitioner claims that the arrangement of January 17, 1988, was merely a temporary waiver of certain conditions of the regular agreement, terminable by either party at will, and that the letter of April 22, 1935, was an effective termination of the arrangement.
The petitioner further claims that with the termination of the arrangement of January 17, 1933, Mr. Mikels was entitled to claim a minimum of eight hours pay six days per week. This claim the Referee understands to mean that the petitioner maintains that from April 22, 1935, Mr. Mikels was in fact a regular employe and entitled to all the privileges of a regular employe under the agreement, notwithstanding the fact that the carrier maintained that he was tin extra employe.
The carrier claims that the arrangement of January 17, 1933, was an agteement terminable only in compliance with Section 6 of the Railway Labor Act.
The carrier further maintains as to the facts that Mr. "Mikels has not been called regularly one or more times each day" (Supplemental statement submitted April 2, 1936, page 47) and in the same statement, page 48, "an increase in one employe's earnings does not of itself represent a change in basic mndttions." In other words, the carrier maintains that Mikels is ant extra employe In fact as well as in rating.
There are two points before. the Board. The first has to do with the status of the arrangement of January 17, 1933. The second with Mr. Mikels' status whether as a regular or as an extra employe. It is clear that the temporary arrangement of January 17, 1933, was not an agreement in the sense contemplated by Section Six (6) of the Railway Labor Act. With the termination of such a temporary arrangement, the parties would merely fall back on their regular agreement. The arrangement entered into on January 17, 1933, contained no fixed date of termination, and since it was not an agreement in the
sense contemplated in the Railway Labor Act, and, therefore, was not subject to the procedure stipulated therein, it could, therefore, only be presumed to be terminable upon due notice. The Referee does not hink that a notice of immediate termination constitutes due notice, but he does not consider the point crucial.
As to the status of Mr. Mikels, the parties agree neither on the facts nor on the interpretation of the facts, but in view of his earnings in comparison with the earnings of regular employes, it is not clear that he has suffered material damage because of. the error of the carrier in respect to the abrogation of the understanding of January 17, 1933. If the carrier had given him but few calls as an extra employe, his case for consideration as a regular employe would have had little standing and other employes who were listed as regular might have protested his sharing the work.
The Referee does not find in the record of the case any warrant under the Agreement for ordering the carrier to accord Mr. Mikels the status of a regular employe as of the date when the temporary arrangement was denounced. In the absence of such warrant and of evidence that Mr. Mikels suffered loss by the treatment accorded him by the carrier, no added compensation can be awarded. However, it will be competent for the Board to reopen this phase of the case if and when agreement of the parties as to facts or a weight of evidence which the record does not now show may justify such reopening.
(b) Claim for compensation remanded to the parties for negotiation and agreement. If agreement is not reached the parties or either of them may resubmit the same. By Order of Third Division: