NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the Terminal Board of Adjustment, Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes, that the Carrier violated the Clerks' Agreement:
(1) When it released the employes of the so-called "Dog Watch Crew" on January 13, 1948, prior to completion of their regular assignment, and
(2) That employes named in claim dated January 15, 1948 attached as Employes' Exhibit "A" be compensated for wage loss suffered as therein stipulated.
EMPLOYES' STATEMENT OF FACTS: The employes involved are assigned to third shift positions in the "Mail and Baggage Department" of the Carrier and are and have been regularly assigned to work nine and onehalf hours daily. On the morning of January 13, 1948, these employes were notified by their supervisors to stop work at 7:30 A. M. in most cases, in others, at 8:00 A. M. and in one case at 8:30 A. M. and were not paid for time released prior to regular quitting time.
Attached as Employes' Exhibit "B" are the Assignment Bulletins covering the positions in question. All of the positions in the Mail and Baggage Department were bulletined in November, 1947 as the result of a change in Rules eliminating the Note at the bottom of Rule 44 in the present agreement. Attached as Employes' Exhibit "C" is copy of Bulletin No. 468, dated 2/1/47, showing the manner in which individual positions on Dog Watch Crew were bulletined prior to November 23, 1947 and the intent of the note appearing on assignment bulletins issued on or about that date, Employes' Exhibit "B".
The positions have remained on this schedule for a long period of years and employes occupying same had not been released before 9:00 A. M. for ten years or more prior to the date in question, and have not been released before that time since that date except in cases where individual employes requested a leave of absence in cases of necessity and then some of the employes have been refused in their requests to leave at 7:30 A. M.
Copies of correspondence in the handling of these claims to and including the highest officer with whom grievances are handled are attached as Employes' Exhibits "D" to "H .
POSITION OF EMPLOYES: There is an agreement between the parties bearing the effective date of April 1, 1945, from which the following rules are quoted:
This confirms exactly what we have been saying about the hours of the regular assignment (he says that they were from 11:00 P. M. to 7:30 A. M., or eight hours exclusive of the thirty-minute meal period) and the necessity for overtime work, which he admits must be authorized. The notation referred to was simply for the purpose of informing the employes of the likelihood of working overtime. It did not guarantee that it would be worked and in the absence of any such guarantee in the contract, the claim falls of its own weight.
OPINION OF BOARD: There is no dispute about the facts in this case. The Claimants are assigned to positions in the Mail and Baggage Department of the Carrier. Their shift begins at 11:00 P. M. and for years prior to January 13, 1948, they were regularly required to work 1%z hours overtime, or until 9:00 A. M. On the morning of January 13, 1948, they were sent home at 7:30 A. M., after completion of eight hours of work. After that day they have been regularly required to work until 9:00 A. M.
It appears that a blanket bulletin was published November 23, 1947 showing these employes as having hours of duty 11:00 P. M. to 7:30 A. M. with the note: "This crew at the present time works l %z hours daily overtime or until 9:00 A. M." Employes have filed claim for 1% hours at penalty rate for the employes affected by the dismissal at 7:30 A. M. on the 13th.
It has been argued that Carrier by the assignment bulletin assured the employes work until 9:00 A. M. when they bid the job in. It is to be noted that the blanket bulletin showed the hours of the position to be 11:00 P. M. to 7:30 A. M. and then carried the further information that this crew at the present time works 1 1,e hours overtime daily. Thus, the regular hours were an established thing and could not be changed, except in accordance with the Agreement. However, by the use of the language at the present time there was an indication that the overtime would not necessarily be a continuing thing. There is no doubt that the overtime generally required on the positions was an inducing factor to senior employes bidding thereon. But when they bid on such positions they knew, or should have known, that they were taking the risk that the overtime work might be discontinued, since the rules of the Agreement do not guarantee overtime, but, on the contrary, provide that no overtime hours will be worked except by direction of proper authorities. The only guarantees of the Agreement with respect to hours of work on regular assignments were 8 hours per day and six days per week.
It has been further asserted by the Employes that Rule 41 (Absorbing Overtime) was violated in that the employes were required to "suspend work during regular hours to absorb overtime". That argument does not appear tenable to us for there was no suspension of work of these employes during their regular hours and no work performed after such regular hours. In this connection, the introductory paragraphs of a letter of the Local Chairman to Carrier's Baggage Agent dated January 15, 1948 appearing in the record herein are revealing. They read as follows:
that the regular hours are from 11:00 P. M. to 7:30 A. M. These factors in our opinion defeat the contention that Rule 41 was violated.
We find no other rule of the Agreement nor understanding outside thereof which sustain the claim and even though we feel there is substantial equity on the part of the employes, we are constrained to hold that a denial Award is in order.
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