STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the New York Central Railroad, Buffalo and East, that
EMPLOYES' STATEMENT OF FACTS: An agreement by and between the parties hereinafter referred to as the Telegraphers' Agreement, bearing effective date of January 1, 1940, is in evidence; copies thereof are on file with the National Railroad Adjustment Board.
Phoenix, New York, is a one-man station employing an agent-telegrapher under the Telegraphers' Agreement. His assigned hours are 6:45 A. M. to 3:45 P. M. He usually works one hour overtime. A caretaker is employed at the station to be on duty each night to protect the station and handle the mail and express on Train No. 33 due at 7:09 A. M. and Train No. 336 due at 10:00 P. M. This caretaker is also drayman for the delivery of the express for the Railway Express Agency.
On the dates shown in the Statement of Claim, the Carrier required or permitted train service employes or this caretaker, who are employes not covered by the Telegraphers' Agreement, to handle and perform work coming under the Scope Rule and Train Order Rule of the said agreement, such as "OS" of trains, handling of train orders, communication service orders of record and block trains, outside the regularly assigned hours of the agenttelegrapher.
This rule, also by its very language, applies to employes who are notified or called to perform work, etc. Claimant employe was not notified to perform work nor called to perform work, and in fact performed no work outside of his regular working hours. Obviously, Rule 5 has no application in this case.
The Carrier has shown that claims in behalf of the agent-telegrapher at Phoenix on the dates listed in the Employes' Statement of Claim have no merit and should be denied.
OPINION OF BOARD: Between November 10, 1947, and March 22, 1948, the Carrier maintained a station at Phoenix, New York, employing an agent-telegrapher whose assigned hours were 6:45 A. M. to 3:45 P. M. daily except Sunday.
On eight dates specified in claim it is alleged Carrier permitted train service employes or others to perform the duties of block operator outside of the assigned hours of agent-telegrapher.
Claim for a Call under Rule 5 of Agreement effective January 1, 1940, should be sustained for November 10, 1947, February 26, and March 8, 1948.
On account of conflict in statements concerning incidents on January 16, February 23 and 24, and March 20 and 22, 1948, and lack of facts on so-called "subsequent occasions", the Board finds it impossible to render a decision.
Therefore claimant should be paid a "Call" for November 10, 1947, February 26, and March 8, 1948. Otherwise the claim should be remanded to the parties for development of facts and disposition on the property.
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