The First, Third and Fourth Divisions of the National Railroad Adjustment Board have held that consideration is restricted to claims of named parties for specified dates and locations. See First Division Awards 11293 11642 and 12345; Third Division Awards 549, 9006, 1566, 2125, 3103, 4304, 4372 and 4576; Fourth Division Award 206.

Carrier denies violation of Agreement rules and states that claim is without merit and should be denied.

(Exhibits not reproduced.)

OPINION OF BOARD: This dispute involves the claim that the Carrier, at Chicago, violates the rules of the Clerks' Agreement when on Saturdays only it engages the services of persons holding no rights under the contract to perform work delegated to "Roster B" employes. The Organization holds that the Carrier should assign that work to employes on the seniority roster under the Clerks' Agreement in the order of their seniority.

The Carrier first objects to the Board considering the claims of unnamed

The objection is without merit. Rule 42 is primarily a safeguard against stale claims. It contemplates the filing of class actions where more than one claimant is involved, since the right of the "duly accredited representative" to file and prosecute claims on behalf of its members is recognized. To require the filing of separate claims would result in a multiplicity of claims and would but serve to encumber the record. Particularly is this true where there is the possibility, as here, of a continuing violation. While it would be the better practice to name all persons seeking redress in the one claim, the Board frequently entertains claims for compensation where no employes are named. See Awards 3251, 3256, 3687. The reason therefor is manifest. The Board's primary function is to settle disputes involving fundamental differences between parties to an agreement, leaving to them the details of applying its Awards.

In Awards relied on by the Carrier in its brief, to support its objections, claims were entertained in all but one case. Award 4372, by inference, lends some support to the Carrier's position. There the claim was remanded for further handling, after it had been observed that the Carrier had written twice for the names and finally was given the name of one employe whose claim had been denied initially and no appeal taken. In the instant case the Carrier made no objection of record to the form of claim until it had reached the Board. Being of the opinion that to follow Award 4372 and remand the claim would serve no purpose other than to delay settlement of the dispute, and no good reason being assigned why the Carrier would be at a disadvantage in applying such Award as may be made, the Board finds no merit in the Carrier's objections.

On the merits of the case, the Board finds an equal lack of support for the Carrier's position. That which is being attempted in the subject case is patent on the face of the record to be an invasion of the Scope and Seniority Rules of the Agreement. Those rules are based initially upon the type of the work and the employes to be assigned to it. Seniority is inseparably welded to work covered by the Scope Rule. If they become divorced in the minds of the parties then the rules lose all their meaning and become only a paper designation. In short, the right of senior employes to the work covered by the Scope Rule is the warp on which the whole fabric of the contract is woven. To remove either from the contract, or to permit their meaning to become confused in the minds of the parties is to effectively destroy the Agreement for all practical purposes.

This Board has been long committed to the view that the delegation of work to a class covered by Agreement belongs to those for whose benefit

the contract was made. A delegation of such work to others not covered by the Agreement is violative of the Agreement. Awards 3868, 3860, 3955.

It avails the Carrier nothing, in the opinion of the Board, that all employes of "Roster B" had received 40 hours' work during the weeks in question. Rule 20 (d) states that "regularly assigned employes will be given preference when overtime is necessary on their positions. Because the work is outside an employe's regular hours of assignment does not grant the Carrier the right to assign the work to persons not covered by the Agreement. Award 4933.

The phrase "regularly assigned to class of work" has been interpreted to apply to employes who perform such work regularly. Awards 4599, 1630. It follows, therefore, that persons who are only casually and intermittently in the Carrier's employment may not replace employes who are on regularly assigned positions, just because the work falls outside regularly assigned hours.

The Carrier places emphasis on the need to supplement its forces from time to time to take care of fluctuations in the work load. It says Rule 20-3 (f) gives it this right. A careful analysis of Rule 20-3 (f) leads to the inescapable conclusion that it is designed for apportioning overtime among employes regularly in Carrier's employment. Extra and unassigned personnel are to have preference over employes regularly assigned to the position where the regular employe has had 40 hours' work that week and the extra or unassigned employe has not. The extra and unassigned employes to whom reference is made are those who are on "Roster B", which, obviously was set up to take care of the fluctuations to which the Carrier alludes. Whatever may be said about the Carrier's rights under the rule to augment its forces temporarily during peak periods of full employment, the rule, when considere~ with other rules of the Agreement, does not deprive senior employes of th<.

through the very nature of their casual and intermittent relationship can never acquire a status on the seniority roster, and give them work in preference to senior employes is to defeat the rights of the senior employes, a practice long frowned on by the Board By analogy, it is closely akin to

farming" work out, something to which the Board has refused to give its blessing. See Award 906 and those therein cited.

It is with understandable vigor that the Organization opposes hiring persons for one day a week, who, by the very nature of the hiring, owe a divided allegiance to the employer and none to the Organization. As observed by this Board in Award 717, "every Organization expects the work fallin,

within the scope of their agreements with the Carrier to be performed by employes on the official seniority list." The hirings which provoked this controversy involved persons employed one day per week who thereby can never attain a place on the official seniority list and whose relationship with the employer falls short of being a bona fide employer-employe relationship, because, unlike those whose names are on the official seniority list, the hiree does not approach the position with the desire, intention and expectation to become an employe subject to call and assignment at all times with readiness to serve, as provided in the labor agreement which governs the work. It cannot truthfully be said that they are the employes for whose benefit the contract was made, so a delegation to them of work covered by the Agreement is to give work to those not covered by the rules, which, as above indicated, is violative of the Agreement. Also, see Awards 3763 between the same parties to this dispute.

Having concluded that the contract was violated, there remains the matter of determining the rate of pay at which the senior employes who lost time from their positions are to be compensated. By the great weight of authority, the employes are entitled only to pro rata pay. The minority view, by which the employes are paid for time lost at appropriate rates of pay (in this case one and one-half times the regular rate where overtime is involved) has been

invoked by this Board, however, for violations of this same contract, so it is not considered a departure from precedent to again impose it here. See Awards 4025, 4866. It appearing from the type of violation that it was a studied attempt to evade the overtime provisions of the contract and did not come about through inadvertence there appears justification for compensating claimants for the loss sustained rather than pro rata.

Therefore, it has been concluded that all employes who have sustained a loss of pay by reason of the rules violations in question be compensated at the contract rates of pay instead of on a pro rata basis.

Since there is implied a continuing violation of the Agreement and the claim is insufficient for the Board to determine who of the Carrier's employes are afected by name and in line of seniority, the case is remanded for adjustment of all claims in accordance with these views.

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

That the Agreement has been violated as stated in the Opinion.

AWARD