1. When during April or thereabout of 1940 concurrent with the inauguration of `over-the-highway' trucking service in and out of Carthage, Mo. on the Joplin-White River Division it removed work consisting of trucking freight, checking, receiving and delivering freight in Carthage, Mo. warehouse out from under the scope and operation of the clerks' agreement and assigned or utilized a truck driver, an employe of the Columbia Terminals Company, to perform said work, who is an `outsider'-(not a railroad employe) and who holds no seniority rights under the provisions of the clerks' agreement entitling him to perform same.
2. That the warehouse foreman, rate $4.94 per day, whose assigned hours are 8:00 A. M. to 12:00 Noon-1:00 P. M. to 5:00 P. M., six (6) days per week, be paid a `call' for each day that the truck . driver performed this work effective with July 14th, 1940, on which date the employes' complaint was formally presented to the division superintendent.
at 6:00 P. M. is questionable. His hours of service assignment terminated at 5:00 P. M. This truck is scheduled to arrive at Carthage at 6:00 P. M. Warehouse foreman is not on duty at that time (6:00 P. M.) nor is he required to be on duty. There would be nothing for him to do if he was. The operator of the truck opens the freight house door, trucks his inbound freight out of his road vehicle into the freight house, sets it down in a space set aside for it in the warehouse. He then picks up the outbound freight that was piled in the space set aside for it-Carrier's Exhibit `B'by the station force and loads it in the truck.
"This over-the-highway truck is scheduled to arrive Carthage at 6:00 P. M. daily except Sunday, and, for the information of the Board, there is tabulated hereunder the quantity of L. C. L. freight received and forwarded by truck on this schedule, for period January 1940 to May 1941, inclusive:
"As heretofore stated the Employes in prosecuting this dispute with the Management have in no instance cited any rule of the wage schedule agreement dated August 1, 1926 to support their contention, hence the inevitable conclusion that the Employes are presenting this case to the National Railroad Adjustment Board in the hope of a favorable award which would give to them a rule applicable to their working conditions-a condition of employment the employes have not obtained through negotiations and one that the Railway Labor Act does not empower the National Railroad Adjustment Board to grant."
OPINION OF BOARD: The controlling facts in this dispute are basically the same as in Docket CL-1606, Award 1647; and what was there said is equally applicable here.
The controversy involves the Carrier's warehouse at Carthage, Mo. to which its over-the-road hauler has a key with which he gains access to the warehouse when the regular clerical force is off duty. He is not under the 1649-1b 877
Clerks' Agreement but he performs work in the Carthage warehouse which clearly falls within the scope of that agreement. The fact that he performs the work at a time when the regular clerical force is off duty does not excuse the Carrier's failure to assign the work in accordance with the terms of the agreement.
The Carrier is directed to make reparation to the employes affected by its violation of the agreement beginning July 14th, 1940.
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