"Claim of Earl A. Miller, trucker, Jamestown, N. D., for overtime rate of pay for services performed from 12:01 A. M. to 8:55 A. M., Sunday July 22. 1034, less meal period of one hour. Time involved is seven hours and fifty-five minutes."
S'T'ATEMENT OF FACTS,-The following statement of facts was jointly certified by the parties:
An agreement between the parties bearing effective date of August 15, 1022, Is in evidence, from which Rule 63 thereof is cited:
"NOTIEMn OR CArs-nD.-RvIJE 63. Except as provided in Rule G4, employes notified or called to perform work not continuous with, before, or after the regular work period or on Sundays and specified holidays shall be allowed a minimum of three (3) hours for two (2) hours' work or less and if held on duty in excess of two (2) hours, time and one-half will be allowed on the minute basis."
POSITION OF EMPLOYES.-Employes contend that this practice is in violation of Rule 63 of the agreement. To obviate the necessity of calling Mr. Miller and the crew of which he was a member each Saturday night, the agent Included in a Bulletin Notice having for its purpose reassignment of service hours of regular forces, notice to this extra crew that it would perform service regularly each Saturday night beginning at 11:55 P. M. The work which Mr. Miller and his crew were required to perform on a "call" basis was work which is regularly performed 6 days per week by a regular assigned crew assigned to work from 3: 00 A. M. to 11: 30 A. M. daily, Monday to Saturday, inclusive.
The instructions issued by the carrier and the actual performance of work by Mr. Miller under those instructions clearly evidence the fact be was being worked on a "call" basis to perform work which was regularly performed 3:00 A. M. to 11:30 A. M. daily. The action of the carrier in requiring Mr. Miller and his crew to begin work at 11:5 5 P. M. Saturday nights was intended to evade Rule 63, which requires that Sunday "call" work be paid at the rate of time and one-half.
POSITION OF CARRIER.-The use of extra men commencing work at 11: 55 P. M. Saturday was necessary to take care of the service requirements. Perishable freight from Duluth, St. Paul, and Minneapolis reached Jamestown Saturday evening and was handled at the warehouse and forwarded on the first trains Sunday morning. These extra men were also used to work the passenger trains arriving and departing prior to 0: 00 A. M. Sunday.
There is no dispute that the service of Mr. Miller commenced on Saturday; therefore, the service which he performed attaches to the day on which such service was started. This practice has been followed on the Northern Pacille prior and subsequent to the negotiations Of the Clerks' Agreement. To illustrate: If an employs commences work at, sity, 10:00 P. 31. Saturday and works until 7:00 A. AT. Sunday, with a meal period of one hour, he is allowed straight time rates for the eight hours of service. If such employe had worked six days and commences work at 10: 00 P. JI. Sunday, weakling until 7: 00 A. 5f. Monday, with a meal period of one hour, he would be allowed overtime rates for the eight hours of service. In other words, there has been no segregation of straight time and overtime payments on the basis of the work performed oil Sunday; this Luis been determined on flip basis of when the service commenced. Had Mr. Miller started work at any time after 4:00 P. M. Saturday and previous to midnight and worked into Sunday, he would, under a lrcactice of nntny years' standing, be paid straight time rates for tile first eight hours of service. He was so paid in the present case.
A case involving the same principle arose in 1927. At blandan. N. D., the warehouse force was worked commencing on December 24th and 31st prior to midnight. The employes contended that for the service performed from 12:01 A. bf. to 6: 00 A. AI. December 26th and January ist overtime rates should be paid. This claim wits withdrawn. In the General Chairman's letter of June 13, 1927, withdrawing it tie recognized there was no basis; therefore when he stated:
In the case referred to, the General Chairman of the Brotherhood of Railway Clerks admitted there was no rule to sustain a claim of this kind; tie stated that if such a claim was to be allowed it would be necessary to negotiate a rule to cover such payments. The employes are now asking your Board to render a decision which will establish such a rule. It is admittedly not within the jurisdiction of your Board to grant new rules or change the provisions of existing agreements.
OPINION OF BOARD.-The Board considers that there was no violation of the agreement. A shift commencing on Saturday and ending oil Sunday is a Saturday assignment, and rules providing for punitive payment are not applicable in this instance.
FINDINGS.-The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds
That the carrier and the employes involved in this dispute are, respectively, carrier and employes within the meaning of the Railway Labor Act, as approved .Tune 21, 1934;
That this Division of the Adjustment Board has jurisdiction over tile dispute involved herein; and
That the agreement does not sustain the claim.