BROTHERHOOD OF RAILWAY AND STEAMSHIP
CLERKS, FREIGHT HANDLERS EXPRESS
AND STATION EMPLOYES
STATEMENT OF CLAIM: "Claim of System Committee of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes that the working of employes in the Freight Traffic Department, Denver, Colorado, on Washington's Birthday (Feb. 22nd, 1937) at pro rata rate was in violation of Rule 59 of the current agreement and that the Carrier should be required to pay such employes for wage losses represented by the difference between pro rata rate and time and one-half rate."
STATEMENT OF FACTS: On Washington's Birthday (Feb. 22nd, 1937) certain employes of the Freight Traffic Department, Denver, Colo., were worked and paid pro rata time and the Organization claimed they be paid at rate of time and one-half.
There is in evidence an agreement between the parties, bearing effective date Feb. 1, 1926.
EMPLOYES' POSITION: "The Organization contends that Rule 59 of the existing agreement between the Denver & Rio Grande Western Railroad and the Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employes is clear and admits of no misinterpretation. Rule 59 provides:
`Work performed on Sunday and the following legal holidaysnamely-New Year's Day, Washington's Birthday, Decoration Day Fourth of July, Labor Day, Thanksgiving Day and Cristmas (provide when any of the above holidays fall on Sunday, the day observed by the State, Nation, or by proclamation shall be considered the holiday), shall be paid at the rate of time and one-half, except that employes necessary to the continuous operation of the Carrier and who are regularly assigned to such service will be assigned one regular day off duty in seven, Sunday, if possible, and if required to work on such regularly assigned seventh day off duty will be paid at the rate of time and onehalf time; when such assigned day off duty is not Sunday, work on Sunday will be paid for at straight time rate.'
"It is true that these employes in question did sign a waiver of overtime which was presented to them by their superior officer, but we deny that it was a voluntary action on the part of the employes and further deny the right of an individual employe or an individual officer to.waive any of the provisions of the existing agreement.
"The Carrier contends there is no rule in the agreement with the Clerks' Organization which prohibits it from recognizing and acting upon requests from individual employes who for their own convenience request certain deviations from the established practices, and further contends that as result of its desire to accommodate these particular employes it should not be penalized.
"For the information of the Board will say that subsequent to March 8, 1937, when the overtime work was stopped, these employes were notified that it would be necessary for them to continue to work Saturday afternoons for a period of time until the work on the tariffs was completed. At this time they again made a direct request that they be permitted to work evenings instead of Saturday afternoons with the understanding, of course, no overtime would accrue for such night work. However, as result of the instant claim then being before us the request of the employes was denied."
OPINION OF BOARD: At the oral hearing the parties agreed that the claim was limited to the three individuals shown in the Carrier's Position. Under all the facts involved in this particular case, the employes named should have been compensated at rate of time and one-half for services performed on the holiday, Feb. 22, 1937, in accordance with Rule 59.
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 June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That Messrs. M. W. Weldon, C. L. Sexton and R. A. Fisher be compensated at rate of time and one-half for services performed on February 22, 1937.
Messrs. M. W. Weldon, C. L. Sexton and R. A. Fisher shall be compensated at rate of time and one-half for services performed on February 22, 1937.