NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
"Violation of Agreement Rules by the Company in abolishing all regularly assigned positions of Truckers at Fort Worth, Texas, and thereafter assigning all such employes as `Extra men' with no assigned hours and refusing to permit the employees to work or be paid in accordance with Agreement rules; and claim of such employees for payment of minimum of eight (8) hours per day for each day worked since July 8, 1932."
FINDINGS.-The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier and the employees involved in this dispute are respectively carrier and employees within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board lots jurisdiction over the dispute involved herein.
The parties to said dispute were given due, notice of hearing thereon.Prior to July 8, 1932, all truckers (laborers), considered as regular employees at Fort Worth freight station, were required to and did report for work at a regular starting time and place. Suds employees were also permitted to perform and be paid for eight hours' service daily, except Sundays and holidays. On July 6, 1932, the carrier posted the following bulletin and notice
On and after July 8, 1962, the carrier did not maintain a regular force of truckers with regular assigned hours of service, bill considered and treated all such employees as extra men who reported for duty, and they were given work in accordance with their seniority rights, or released at the option of the supervising officer. The employees who were released from duty before the expiration of eight hours' service, received pay only for actual hours worked.
The freight station at Fort Worth is open for service regularly each day, except Sundays and holidays, from 8: 00 A. M. to 8: 00 P. M.
There is in evidence an agreement between the parties bearing effective date of December 1, 1924, and the following rules thereof have been cited in support of claim
"4. Traffic Department (including General Agencies at Fort Worth, Wichita Falls, and Amarillo and City Ticket Agency at Fort Worth, but excluding off-line General Agencies-separate seniority rosters to be maintained for off-line General Agencies). "6. Office of Superintendent Transportation.
"7. Offices of General Superintendent, Trafnmaster, and Chief Dispatcher of Wichita Falls Division.
"8. Offices of Superintendent, Assistant Superintendent, and Chief Dispatcher of Amarillo Division, and office of Supervisor Bridges and Buildings at Childress, Texas.
"9. Office of Master Mechanic, and all other offices or sub-departments under the jurisdiction of Master Mechanfe.
"10. Office of General Storekeeper and all offices or sub-departments under the jurisdiction of General Storekeeper.
"11. [Tilton Passenger Station at Wichita Falls, Texas."12. All oflives and stations not otherwise listed. Fort Worth to Wichita Falls, not including Wichita Falls.
"13. All offices and stations, not otherwise listed, Wichita Falls to Childress, not including Childress.
"14. All offices and stations, not otherwise listed, Childress to Texltne, Texas, inclusive.
"1o. Offices of Superintendent, Trainmaster and Chief Dispatcher of Wichita Valley Railway.
"16. All offices and stations on Wichita Valley Railway not otherwise listed.
"Seniority is restricted to the three groups of employes mentioned in Rule 1 of this agreement, as follows:
"Groups 1 and 2 shall constitute one seniority class (except elevator operators, office and station watchmen, and janitors).
"Group 3 (including elevator operators, office and station watchmen, and janitors) will be considered a separate seniority class.
"An employe in Group 3 with clerical ability, and with six months' service when recommended by his Superintendent or head of department, without right of appeal by employe, sball have opportunity to bid on vacancies in positions falling in Groups 1 and 2, using his seniority date as a Group 3 employe but taking seniority as an employe in Groups 1 and 2 from the date of acceptance of a position in Group 1 or Group 2.
"An employe in Group 3, with six months' service, if used temporarily on relief work in a position in Group 1 or Group 2 a total of sixty fall days (not necessarily consecutive) will be given (late on the proper roster of Groups 1 and 2 as of date of completion of sixty days (which seniority date as an employe in Group 1 or Group 2 may only be retained on condition that he bids for and accepts the first vacancy in Group 1 or Group 2 for which qualified under Rules 4 and 8) and will continue to accumulate seniority on the list from which promoted.
"When force is reduced employe will exercise seniority under the rules of this agreement first on the roster of employes in Groups 1 and 2 subject to the qualifications of Rule 4, but if forced off of the roster of. employes in Groups 1 and 2 he may within five days resume date on seniority list from which promoted to roster of employes in Groups 1 and 2 and exercise seniority thereon, retaining his seniority in Groups 1 and 2.
"Such seniority as an employe in Groups 1 and 2 may be retained only on the condition that lie returns to a position in Group 1 or Group 2 whenever force is increased or lie bids for and accepts the first vacancy in Group 1 or 2 for which qualified under Rules 4 and 8.
"Except as otherwise provided in these rules, eight (8) consecutive hours' work, exclusive of the meal period, shall constitute a days' work.
"Employer required to report for work at regular starting time, and prevented from performing service by conditions beyond control of the carrier, will be paid for actual time held, with a minimum of two (2) hours.
"If worked any portion of the day, under such conditions, up to a total of four (4) hours, a minimum of four (4) hours shall be allowed. If worked in excess of four (4) hours, a minimum of eight (8) hours shall
"'This rule does not apply to employes who are engaged to take care of fluctuating or temporarily increased work which cannot be handled by the regular forces; nor shall it apply to regular employes who lay off of their own accord before completion of the day's work.
"Regular assignments shall have a fixed starting time and the regular starting time shall not be changed without at least twenty-four hours' notice to the employes affected.
"Established positions shall not be discontinued and new ones created under a different title covering relatively the same class of work for the purpose of reducing the rate of pay or evading the application of this agreement."
The petitioner contends that the handling of freight at Fort Worth freight station re-occurs regularly each working day, and that the carrier is within its rights, under the rules, to increase and decrease its force of truckers in conformity with seniority standing to meet the volume of work available from day to day; that the carrier is not privileged to deny employes, whose seniority entitles them to employment, the right to work and be paid less than eight hours per working day on any days when service is performed, except when Unforeseen conditions arise beyond the control of the carrier, and that the provisions of Rule 33 apply to the employes in question.
Petitioner also contends that the carrier, by its bulletin of July 6, 1932, discontinued or abolished regular established positions of truckers and created parttime or short-hour positions for the purpose of reducing the rate of pay and evading the application of the rules of the agreement, thereby violating the provisions of Rule 60.
Further, that this being regular work re-occurring every day, except Sundays and holidays, the carrier also violated Role 40 in not assigning a regular or fixed startior. time for the positions in question; that these employer work daily, are engaged in handling the regular business of the carrier, and are not engaged in handling fluctuating or temporarily increased work which cannot be handled by regular forces.
The carrier contends that the freight station at Fort Worth is a facility where Inbound and outbound LCL business is handled in the same warehouse and over the same platforms; that this LCL freight is received in railroad cars
and moved by highway motor truck to consignees' places of business, or by motor truck to stations of connecting railways for forwarding beyond, all of which is classed as inbound tratfie; that this same class of freight is delivered to the carrier on highway motor truck by shippers for forwarding by railroad, or delivered to the carrier by motor truck and in railway cars by connecting lines for forwarding, this being classed as outbound traffic; that the carrier also, handles tonnage transfer from car to car that is being received and forwarded by rail, this being included in the general classification of inbound and outbound business.
The carrier also contends that at Fort Worth station there is quite a disparity in the relation between inbound and outbound tonnage and almost a complete lack of balance in this respect; that in the year 1935, LCL business was uhidcd, I6% inbound, 84% outbound; that until within the last two or three years inbound and outbound tomiage was balanced to an extent that enabled the carrier to work all truckers full eight hours each working day; that formerly it was the practice of all railways in Fort Worth to move LCL freight to the stations of connecting lines in trap railroad cars, by which method all of this freight loaded at the stations of connecting lines oil one day was, as a rule, placed at the station of the respondent carrier at the usual commencing time on the following morning; that Ili addition to this tonnage, there was a considerable volume of cotton reaching Fort Worth from points on the line, in mixed cars, i. e., each car contained cotton for one or more connecting lines, and at times also for local delivery.
The carrier further contends that under former conditions, it was not necessary to work truckers less than eight boars per day; that because of the fact that motor carriers have no fixed closing time, the starting time, at the warebouse was first changed from 8: 00 A. M. to 8: 30 A. M., then to 9: 00 A. M., and that it is now 11 : 30 A. Al.; that on July 8, 1932, by appropriate notice, all truckers were placed ml extra basis; that this was done because the carrier found that notwithstanding the a;ljnatmonts made in working hours, they were still encountering periods of idleness far the truckers; that although truckers performing this work are considered extra men, seniority is observed; that the volume of freight is most mreertahi and erratic and therefore the nature of the work. which is to handle that freight, is necessarily uncertain, erratic and fluctuating, and that the last paragraph of Rule 35 applies to these employes.
The Division finds that the record is indefinite as to the number of employes affected by this violation of rules fur the early period of the claim. In this regard the evidence is obscure or conflicting.
Pxhibit B of the carrier, however, makes a clear record as to the facts and the number of employes involved for brief periods beginning February ll, 1935. This exhibit shows that, exclusive of Sumbtys and Labor Day, for the periods February 11 to February 23, inclusive, 7 to 10 employes, and from August 16 to September 7, inclusive, 1935, 7 to 11 employes were worked, with the exception of one (toy on which 12 were used.
Basel on the foregoing evidence, which is corroborated by other evidence and statements in the record, the Division finds that such portion of the force as was used with regularity could and should have been established with a fixed starting time under Rule 40, and compensated under Rule 33. The remaining employee who were engaged to take care of fluctuating or temporarily increased work which could not be handled by the regular force, as provided for in Rule 35. were properly compensated.
The carrier and petitioner are directed to make a joint check of the payrolls for the period mhsequent to February 11, 1935, and senior employes constituting the regular force shown to have been used, shall be compensated under Rule 33; except in instances, if any, of an unusual nature, wherein it Ls shown that employer were prevented from performing service by conditions beyond the control of the carrier as contemplated in Rule 35.