When the Wage Hour Administrator issued the Wage Order setting a minimum of 364 per hour, all rates below 360 per hour became illegal and the carrier increased those rates to 364 per hour.

Inasmuch as the legal rate of pay for the Baggage Porter at San Antonio is 364 per hour, it follows that the overtime rate, under Rule 37, must be one and one-half times 364, or 544 per hour.

CARRIER'S STATEMENT OF FACTS: On April 2, 1941, E. V. Rose, employed as Baggage Porter at San Antonio, Texas, worked 1-hour and 30 minutes overtime, for which he was paid 49.754 per hour, which is the overtime rate establihed for the position by Agreement with the Clerks' Organization. On May 12, 1941, the General Chairman of the Clerks' Organization filed claim for payment at the rate of 544 per hour, basing same on the following statement contained in letter to General Manager of Carrier:

"The hourly rate of this employe is 364 per hour as contained in the Wage Order under the Fair Labor Standards Act and Rule 37 of our Agreement requires that all overtime be paid at the rate of time and one-half; therefore, failure to pay for this overtime at the rate of 544 per hour is in violation of the Agreement."

POSITION OF CARRIER: Section (a) of Rule 37 of current Agreement with the Brotherhood of Railway Clerks reads as follows:

"4a) Except as otherwise provided in this rule, eight (8) consecutive hours or less, exclusive of the meal period shall constitute a day's work for which eight (8) hours pay will be allowed. Time in excess of that on any day will be considered as overtime and paid on the minute basis at the rate of time and one-half."

The agreed to basic daily rate of Baggage Porter Rose is $2.65, pro rata hourly rate 33.125 cents, overtime rate 49.75 cents. The minimum hourly rate established under the Fair Labor Standards Act is 36 cents. Mr. Rose was paid at a rate in excess of that established under the Fair Labor Standards Act. The application of rates of pay established under the Fair Labor Standards Act is not by agreement with the Clerks' Organization.

It is the contention of the Carrier that there has been no violation of the Clerks' Agreement as Mr. Rose has been paid as provided for in Rule 37 (a), quoted above.

OPINION OF BOARD: The controlling facts in this case are not in dispute; briefly stated they are: Effective March 1, 1941, the Wage Order issued by the Wage and Hour Administrator under the provisions of the Fair Labor Standards Act of 1938, provided that, "Wages at a rate of not less than 364 an hour shall be paid, * * *." On April 2, 1941 porter E. V. Rose worked one hour and thirty minutes overtime and was paid $.4975 per hour therefor. The question is, was Rose entitled, under Rule 37 of the current agreement to be paid for the overtime worked on the basis of the rate of 364 per hour, the rate fixed under the Fair Labor Standards Act of 1938, or as he was paid, which the Carrier contends was the agreed to rate prior to the enactment of the Fair Labor Standards Act?

"Rule 1 (a), Group 2: All other office, station and store employes, including office boys, messengers, train announcers, gatemen, baggage and parcel room employes, train and engine crew callers, telephone switchboard operators, elevator operators, office, station, warehouse and store watchmen, janitors, and all other employes performing similar work."

It is the position of the Employes that the contract rate was superseded by the rate of 362 per hour established by the Fair Labor Standards Act; and that the overtime worked on April 2, 1941 and other days subsequent to March 1 1941 entitles the employe, under the provisions of Rule 37, to time and one-half the rate of 36:0 per hour, or 640 per hour.

It is the position of the Carrier that the employe should be paid at the rate of 36¢ per hour for so-called straight time as is provided by the Fair Labor Standards Act and a rate of 33%¢ per hour for overtime as is provided in the agreement.

The opinion in the above award is controlling in the instant case. The wage of the employe in this case for overtime should be based on the modified agreement or at the rate of 54¢ per hour for all overtime worked since March 1, 1941.

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 employe involved in this dispute are respectively carrier and employe 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 current agreement was violated by the carrier as contended by the petitioner.

AWARD