PARTIES TO DISPUTE:

 BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
 FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:


(a) Mr. K. F. Henrich, Ticket Clerk at Marysville, California was senior qualified regular assigned employe available, and should have been called each day for vacancy on position of Baggageman at Marysville, hours 12:00 Midnight to 8:00 A. M. October 16 to November 22, 1944, inclusive and November 25, 1944 to January 4, 1945, inclusive.


(b) Mr. Henrich be compensated at the rate of time and one-half for 8 hours on each of the days involved in this claim.

EMPLOYES' STATEMENT OF FACTS: During the period October 16, 1944 to January 4, 1945, inclusive. Mr. K. F. Henrich was the occupant of the position of Ticket Clerk at Marysville, California with assigned hours of 4:00 P. M. to 12:00 Midnight, working 7 days each week. He worked each and every day during this period with the exception of November 23rd and 24th.


On the days involved in this claim the position in question was filled by the use of soldiers stationed at Camp Beale (a military establishment located a few miles south-east of Marysville). The soldiers held no seniority rights under the provisions of the Clerks' Agreement, whereas Mr. Henrich did hold such rights, having a seniority date of October 4, 1913.


POSITION OF EMPLOYES: The following rules are cited from the current Agreement bearing effective date of December 16, 1943:


RULE 1. SCOPE.

 "These rules shall govern the hours of service and working conditions of all of the following class of employes, subject to the exceptions noted below:




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It is the contention of the Carrier that Schedule Rule 40 (d) clearly gave it the right to hire Aron and Nelson for the performance of extra work. Even if that right had not been accorded to the Carrier by the schedule, there is nothing to warrant paying Henrich at overtime rates of pay. The overtime rule (Rule 20 of Current Clerks Schedule), reads:




Rule 20. Except where changing assignments in the exercise of seniority rights, or where furloughed employes are used on more than one shift, time in excess of 8 hours, exclusive of the meal period, in any 24-hour period, shall be considered overtime and paid on the actual minute basis at the rate of time and one-half.



This requires the payment of overtime only when employes are used in excess of eight hours in any twenty-four-hour period. Henrich was not used, therefore, the overtime rule is not applicable to him.




(1) The extra work as baggageman at Marysville, California, 12:00 Midnight to 8:00 A. M., from October 16, 1944 to January 4, 1945, inclusive, was .performed by employes hired for the performance of extra work as specifically set forth in the last sentence of Rule 40 (d).


(2) There is nothing in the schedule contemplating or requiring the payment of time and one-half except when an employe is used, and Henrich was not used.




OPINION OF BOARD: Claimant was assigned as Ticket Clerk, 4:00 P. M. to 12:00 midnight, working seven days per week. He worked each day from October 16, 1944 to January 4, 1945, except November 23rd and 24th. Between the aforesaid dates, the position of Baggageman-Janitor, assigned 12:00 midnight to 8:00 A. M., became vacant and no bids were received when it was bulletined. The position was not filled by appointment in accordance with Rule 36. The Carrier used two soldiers from Camp Beale to perform the work of this position. Claimant contends that he should have been doubled over and used at the overtime rate, there being no extra or furloughed employes available.


It is the contention of the Carrier that the two soldiers were new employes and that it was proper to use them when no extra or furloughed employes were available. The two soldiers did make applications for employment in the usual manner. We think the evidence shows that they did not become such. Consequently, they accumulated no seniority. If they were new employes, they should have been assigned to the Baggageman-Janitor position under Rule 36, current Agreement, which states:


"New positions or vacancies may be filled temporarily during the 10 days pending assignment. In the event bulletin fails to develop an applicant, the position may be filled by appointment, except as otherwise provided in Rule 40. Regular notice of assignment shall state no qualified bids received, and show name of employe assigned:"

The failure of the Carrier to comply with the foregoing rule in filling the position with the two soldiers, is a clear indication that the soldiers were not considered as new employes. The fact that they were in the army and

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not subject to use except for limited hours, and then only by permission of their commanding officer, substantiates this conclusion. The two soldiers never having become employes in the sense used in the collective Agreement, they could gain no rights under the Agreement. Consequently, Claimant had a valid claim to the work.


The rate to be paid for work lost under the circumstances here shown is the pro rata rate of the position. Award 4244.


The two soldiers who performed the work had no rights under the current Agreement. There being no extra or furloughed employes to perform the work, Claimant by virtue of the rules of the Agreement, had a superior right to the work, A sustaining award is in order.


FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


That both parties to this dispute waived oral hearing thereon;

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


That the Agreement was violated.

    Claim sustained at the pro rata rate.


                NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division


ATTEST: A. I. Tummon
 Acting Secretary

 Dated at Chicago, Illinois, this 29th day of July, 1949.