NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

James M. Douglas, Referee

FLORIDA EAST COAST RAILWAY COMPANY (SCOTT M.

LOFTIN AND JOHN W. MARTIN, TRUSTEES)

(a) The carrier violated the Clerks' Agreement by failing and refusing to rate positions Nos. 5 and 3000 at $4.8815 per day when created at Hollywood Agency in accordance with provisions of Rule 56, and

(b) that all employes involved in or affected by the agreement violation be compensated for all losses sustained between the time positions were established under the current agreement, December 13, 1940 and the time that the positions are rated in accordance with the provisions of the agreement rules.

"The duties of this position consist of checking, receiving, de-

(Advertised December 12, 1940, rate of pay $4.8815 per day,

probable duration four months.)

"The duties of this position consist of checking, receiving, deliver-

ing, forwarding and keeping record of baggage, handling baggage

accounts, looking up records in connection with baggage claims,

supervising the handling of mail and other duties assigned by Agent."

[429)

vacancies were being advertised in the positions and not when the positions were being re-established. These positions were re-established in December, 1940 and were cut off and re-established several times between December, 1940 and April, 1945. Each time they were re-established or became vacant they were bulletined to all employes in the seniority district and copies of the bulletin sent to the representatives of the Employes.

The claim is entirely without merit and should be denied.

(Exhibits not reproduced)

OPINION OF BOARD: By this claim Petitioner seeks to have the rates of two clerical positions at Hollywood, Florida, increased. It contends that when these positions were established on December 13, 1940, they were new positions and came within the provisions of Rule 56.

Rule 56 reads:

"The wages for new positions shall be in conformity with the wages for positions of similar kind or class in the seniority district where created."

In resisting the claim Carrier raises two defenses. First, it alleges that these positions are not new positions but are old positions, seasonally re-established. Second it asserts that the present rates of the positions in question conform with the rates of positions of similar kind or class in the same seniority district.

The station at Hollywood was a creation of the Florida boom of 19241926 and the positions in question were then first established. When in the natural order of events the bust followed, the positions were "cut off" on May 15, 1926. The bust was followed by a tropical hurricane that apparently blew Hollywood almost off the map because only after fourteen years do we find the positions again in being. Although Carrier claims they were "cut off" in 1926, it is our view they were then abolished, and we cannot agree their establishment after 14 years made them "seasonal" positions at that time. It appears that thereafter they may have become seasonal positions but that is of no consequence in this claim.

We discussed the issue of seasonal positions in a claim involving that same issue but different facts in Award No. 3928, and adopt here what was said there about that issue. However, that Award is distinguishable on the facts. There, as a result of the war, the new positions established had different duties than the previous position had. Carrier later recognized this and placed the new positions on the same parity with similar positions in the same seniority district. Here we find no change in duties.

The determining question in this case, therefore, is whether the rates of the positions conform to others of similar kind or class.

Petitioner says they should carry the same rates as the baggage clerk positions at Fort Pierce, West Palm Beach, and Miami. The record shows they now have the same rates as clerical positions at Lake Worth, Delray Beach, Boca Raton, Pompano, Fort Lauderdale, and Dania which, together with Hollywood, comprise the intermediate stations between the noted tourist resorts of West Palm Beach and Miami. These intermediate stations are all comparable in that they are small agency combination baggage and freight agency positions, and except for Fort Lauderdale are of comparable population. The fact the positions in question are baggage clerk positions while those at the above stations are merely clerical positions does not keep them from being of "similar kind or class." The positions do not have to be identical to come under Rule 56.

Petitioner has the burden of proving the positions in question are of similar kind or class with other positions In the same seniority district which carry the higher rate sought for. It has not sustained that burden in this claim.

Accordingly, the claim should be denied.

That Carrier has not violated the Agreement.

AWARD