December 10th and 11th was "assisted by another laborer." Here is the question raised as to the necessity for continuing and uninterrupted supervision in order that he remain a laborer, and apparently the inference that if two laborers work together, such joint service automatically makes a superior out of one of them. The report further states that he "counted and reported different kinds and sizes of lumber" as "Foreman was taking stock." In connection therewith, the Board's attention is directed to the Findings in its Award 2028, covering a similar case of counting material during annual inventory.

On December 12th, Scalzo is again reported as "unloading and putting away material," and "shoveling snow," again nothing but laborer's work, unless perchance the employes intend to infer that the foreman should have stood by and specifically directed him upon which side of the walk to deposit each shovelful.

The Board's attention is also called to the last sentence of this letter, reading: "Please advise if you will arrange to pay this employe at rate of 59¢ per hour on dates he performs work of material handler." The claim at that time did not appear to be one for reclassification of a job, but rather one for payment of the higher rate when higher rated work was performed. The Carrier has no quarrel with a claim for payment at proper rates when employes are required to perform other than their properly assigned duties, but certainly there is no evidence of any such in the present instance. Exhibit C-1 is not a joint check, but an employes' check, and still it shows no evidence whatsoever of Scalzo having performed other than "unskilled manual work by direction of a superior," and in the absence of such evidence, the claim cannot properly be sustained.

OPINION OF BOARD: On July 5, 1941, the petitioner was employed as a laborer in the Stores Department of the Carrier, at Cedar Lake and Union Yard, Minneapolis, Minnesota, and had been so employed for some nine months previous to said date. This store is not a part of Minneapolis Junction Store, although located in the same seniority district. At that time the position of a laborer was rated, as to pay, at 49 cents per hour. On the same date the position of material handler in that seniority district was rated at 59 cents per hour. Petitioner contends that the work he was required to do was material handler's work, and he asks that he be paid as such, and relies on Agreement Rules Nos. 61, 62, 63 and 66 as sustaining his claim.

In October, 1937, the Brotherhood and the Carrier agreed upon a definition of the term "Stores Laborer" as follows:

"An unskilled manual worker, engaged in the handling of material from point to point or to and from cars by direction of a supervisor or superior, and not requiring the checking, tallying, classifying, or recording of same; cleaning, sweeping, or shovel work; cutting grass or weeds or removing snow and ice; or other similar unskilled manual work not involving the performance of checking or clerical duties."

The petitioner, as illustrative of the work he was required to do, outlines the work he actually did for the week of December 6 to 12, 1941, both inclusive. During that week he worked six days of eight hours each, a total of forty-eight hours. For twenty-four hours at that time, according to his claim, he worked at "unloading, tallying and reporting lumber sizes and putting into stock," and for sixteen of said twenty-four hours had the assistance of a helper. He stresses the claim that he was engaged in "tallying," work which he contends, under the definition quoted above, took him out of the classification of "laborer." For the other twenty-four hours he, in our opinion, clearly did laborer's work as defined above, although it is claimed that unloading and putting material away is strictly material handler's work, and that no more than ten hours of the work he did during the week in question should be classed as laborer's work.

We find it difficult, if not impossible, to distinguish, in any satisfactory way, between the work a "material hanler" does, and the work done by a

laborer. Viewing the matter from a common sense standpoint, and drawing upon knowledge common to all, we know that a material handler must do manual labor. He does some clerical work, and has responsibilities which laborers are not required to assume, and possibly therein lies the distinction, and on the basis of these distinctions, petitioner says that in reporting and tallying material he was doing the work of a material handler.

The petitioner says that much of the work he does is not supervised; that no material handlers work at Cedar Lake and Union Yard; that in fact only a foreman and himself work in the store at that point; and that, inasmuch as material is handled at that store, the work of a material handler is, necessarily, required. He also says that the foreman is often absent, by which we assume he means that the full responsibility for the material, and the handling of same, rests upon the laborer, and that by reason of these conditions, he should be classed as a material andler.

Some confusion arises from the fact that on December 20, 1941, Division Chairman Burns wrote the Carrier, calling its attention to the character of the work done by the petitioner from December 6 to 12, of that year, and ending with this request: "Please advise if you will arrange to pay this employe at the rate of 59¢ per hour on dates he performs work of material handler." The claim now being considered, filed December 18, 1942, a year later, is based on the contention that, inasmuch as the petitioner did some material handler's work, he should be paid full time at the rate applicable to that type of work. We hink we are warranted in considering the claim as it was formally filed, and without regard to the letter of December 20, 1941.

Many awards, interpreting and applying Rules 61 and 62, hold, in effect, that, regardless of what an employe is called, he should be paid the wage applicable to the work he actually performs. Therefore if petitioner did a substantial amount of material handler's work, he should have been classed as a material handler and paid as such, even though he may have done some of the work of a store laborer, and was classified as such. It is not possible to state just what amount of material handler's work a laborer should do to entitle him to be classified as a material handler. Each case will have to depend on its own circumstances.

Award 1516 of this Board was based on the claim of an employe who for a long period of time had been employed, off and on, as a lumber yard laborer. He claimed that he should be classified and paid as a working foreman. It was claimed that the work he did included that of assisting in, "* * * the unloading of material, and in doing so is the leader of a gang of four men, and checks the material (chiefly lumber) against invoices and makes sure that it is properly placed in the lumber yard. These duties re quire that he be able to grade and tally lumber in addition to being able to verify the count." There was a joint check of the work performed, after which the claim was denied, the Board holding:

"The joint.check shows that Lehman had no authority to issue instructions or delegate duties to men in the group; that the crew in which he works is supervised by lumbermen or lumber yard foremen; that be dues not grade lumber; that he assists in unloading materials working with a gang of 4 men; that the checking of materials consists merely in counting the number df pieces of lumber unloaded from cars of mixed lumber or total number of pieces in cars of the same size."

"The Carrier violated the Clerks' Agreement in the Store Department at Kingsville Texas, by requiring laborers to count, weigh, measure and record material during the taking of an annual inventory,"

"It seems from the record that during this ten day annual inventory period it is necessary that materials on hand in and about the storehouse in bins, containers, stock piles, etc., must be counted, weighed and measured, and that some kind of a tag or mark must be placed on or in each in, container or pile properly designating the quantity, weight or measurement involved. The record is silent as to whether or not store helpers were used with the laborers in performing this work. The record is clear however that the laborers did nothing more than their usual work except to make some notation of their counts, weights and measurements. The record also shows that in the making of the inventory the laborers did not call off the materials for the purpose of recording, but that work was performed by store helpers calling off the notations to the stock clerk who made the permanent records in the stock book.

"The referee is of the opinion that a common sense interpretation of the rules must classify this claim as unsubstantial. A laborer does not cease to be a laborer if he learns to count, weigh, or measure, nor if he is sometimes called upon to exercise one of these simple functions. It is obvious that any person of ordinary intelligence could do these simple acts and that there never was any intention to reclassify these men or change their status by using them for parts of ten days under a roof instead of out in the yard. Taking material from a bin and counting it back into the same bin would be considered by the average person to be a very ordinary form of common labor requiring no more intelligence than to count and write down what had been counted. It does not appear from this record that anything was required of these men on these days other. than what might have been incidentally required of them on any ay without hardship to themselves or violation of any agreement. Their work was no more burdensome nor difficult of performance on these days than on any other and it would be unreasonable to give them a different classification and rate of pay for these days. The claim must be denied."

promote his advancement, would be unfortunate for laborers as a whole, however it might serve the interest of an individual. Petitioner may have done some work customarily done by material handlers, while in other cases material handlers must, necessarily, do work ordinarily performed by laborers. It is impossible to draw an exact line of demarkation between the two types of service. This being true, and so long as no bad faith is shown, on the part of the Carrier, in the classification of employes, and the line which separates different types of employment is not clear, in our opinion this Board would not be warranted in making a classification different from that made by the Carrier. In such a case the Carrier has a discretion, but of course, that discretion must not be abused. What the petitioner may have done in the line of material handler's work, was not, in our opinion, sufficient to take him out of the classification of a laborer, and entitle him to be classified and paid as a material handler. His claim will, therefore, be denied.

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 type of work done by the petitioner did not entitle him to be classified and paid as a material handler.

AWARD