NATIONAL. RAILROAD ADJUSTMENT BOARD
Third Division
"Ciaim of Christ Bolsand, crossing flagman at Neenah, that he be paid the difference between what he received as crossing flagman and what he should have received as lamp tender for hours he was required to devote to tending lamps in Neenah yard since August, 1933 "
STATEMENT OF FACTS.-The following statement of facts was jointly certified by the parties:
"Christ Bolstad is assigned as crossing flagmm at Lake Street crossing, Neenah, Wisconsin, at rate of pay as provided for in the schedule of $:58.75 per month.
"Since August 1st, 1933, Crossing Flagman Christ Bolstad, while performing his duties as crossing flag,nan has taken care of switch lamps in the proximity of the Lake Street crossing on each \Ve,tnesday from 10:00 a. in. to 11:30 a. m. and each Saturday from 10: 00 to 11:00 a. m. and from 1:00 p- m. to 1 :30 p. m., appro=dmathig 13th, hours per mouth. Other switch lamps at Neenab are taken care of by section laborers whose rate of pay is 41 cents per hour:"
An agreement between the parties bearing effective date of November 1, 1934 was placed in evidence.
POSITION OF EMPLOYES.-The contention of the employes were stated as follows:
"Christ Dolstad has been for several years, and is, at the present time, assigned as a crossing flagman ml file Lake Street crossing, Neenah, Wis., at a compensation of $68.76 per calendar mmith. This compensation was fixed with the thought in mind that it would cover a nomnauual labor position, or in other words, to a position to which an incapacitated man unfit for regular manual labor may be assigned.
"Prior to August 3, 193:3, switch lamps in the proximity of the Lake Street crossing were liken care of and handled by a section laborer at the rate of 410, per hour. Effective August 3, 1933, this section laborer was relieved of the duties of taking care of the switch lamps, and Nvas required to devote the time lie spent oil the switch lamps to ocher services in Neenah yards-services that commanded a rate of 41¢ per hour. When the section laborer was relieved of the duties of taking care of the switch lamps, crossing flagman Boletad was assigned to this work and required to lake care of the switch lamps in the proximity of the Lake Street crossing, in addition to his services as crossing flagman.
"As indicated by the Joint Statement of Facts, lalstad worked approximately four hours per week or thirteen and one-half hours each month, taking care of the switch lamps. a service that commands a rate of 41¢ per hour, whereas his wage as a crossing flagman, figured on an hourly basis, amounts to 24¢ per hour, or 170 per hour less than the rate appli-
The carrier further argued that though the circumstances surrounding the crossing flagman's job at Lake Street were such that continuous service as a crossing flagman is not required, that fact did not deprive the carrier of the right to use him during his idle time in other service without the payment of additional compensation for such limited service performed inside his regularly assigned hours, particularly in this case in which such a limited amount of his time was required in taking care of switch lamps near his crossing, and in view of the clear-cut provisions of the composite service rule (Rule 22) quoted in the position of the carrier, when such provisions are not violated. Tile carrier also argued from the 'Mediation Agreement of Jammry 19, 1933,
"QUESTION * * " Claim of the employes that the Railway Company is not within its rights in contracting the work of taking care of switch hnnps and cleaning cars in the St. Paul yard.
°SETTLETIENT * * * That part of the Railway Company's letter of July 24, 1922, addressed to the General Chairman of the Brotherhood of Maintenance of Way Employees, File 21418, reading as follows: 'It is not the intention of the Company to let out any contract work which lugs been customarily done by Maintenance of 11-ay Department employes', is herewith reaffirmed and shall be observed.
"Li consideration of the above, this case is withdrawn. It is understood, however, that the position of the employes is not prejudiced and that the case will again be considered if the work in question develops into a full-time position.
"QI,ESTION * * * Clahn of the employes that the Railway Company is not within its rights in contracting the work of taking care of switch lamps at Rhinelander, Wisconsin, and that the employes who lost employment. through this contracting work be reimbursed for all time lost during this period.
OPINION OF THE BOARD. The, contention in this case is not that there has been any direct violation of any particular rule or rules of the agreement, bill rather that there has not been compliance with the intent of the agreement as it relates to the positions of crossing watchmen or fiagmen and the class of work contemplated by Snell positions. Rule 11 of the agreement between the railroad company and the Brotherhood of Maintenance of Way Employes, which has been quoted and discussed in this ease. specifies the manner in which flip positions of crossing watchmen or flagmen are established. Ride 22 of the same agreement covers conditions where work of more than one ehiss is performed by the same employs on the same day. This rule (22) reads:
Considering this rule, and notwithstanding the several cases that lmve been cited for and against this claim, there is a basis for the assumption that the proper interpretation of the first paragraph of that rule refers to temporary positions and positions for which a daily rate is paid and not to established
positions paying a monthly rate. That this interpretation is justified is amply evidenced in the second paragraph in which temporary positions are specifically designated as is the fact that where temporary assignments are made to lower rated positions the rate of pay will not be reduced. In the present case the position of this claimant was not a temporary one, nor one on which a daily rate had been established, but rather it was an established position paying a monthly rate and to which additional duties paying a higher rate of pay had been added as a regular assignment. In the application of the interpretation of the intent of these rules, and particularly of rule 22, the fact remains that regardless of how much or bow little time was required in the fulfillment of other assigned duties the position of this claimant eras that of a crossing watchman or flagman, and any additional duties which in their proper application and classification would require a higher rate of pay should be compensated accordingly.
FINDING'S.-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 June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the carrier has not compiled with the intent of the agreement in the handling of instant case.