Numerous Board Awards make it clear that even if it should be concluded that Boyd was held off this work in violation of the Agreement there is no basis for payment of punitive rate as claimed in Item 2 of the Statement of Claim and payments would not be due for dates for which no claims were filed during the period specified in Item 1 of the Statement of Claim.
OPINION OF BOARD: It is conceded the Carrier has a large force of freight handlers at its Seventh Street Freight Warehouse platform, St. Louis, Missouri, and that in supervision thereof during the dates in question it employed one General Foreman and four Assistant Foremen with assigned hours at different periods during the overall hours of 7:30 A. M. to 5:15 P. M., each such position working eight (8) hours per day, five days per week. General Foreman John Dunn had Saturday and Sunday as rest days, likewise Assistant Foreman Boyd (outbound), the claimant here, and Assistant Foreman O'Shaughnessy (outbound). Assistant Foreman Tritschler (inbound) and Assistant Foreman R. S. Dunn (outbound) have Sunday and Monday as rest days. All four of these Assistant Foreman positions were bid in by the present incumbents pursuant to bulletin advertising such positions for bids subsequent to their restoration following the termination of the train and engine service employes' strike. This bulletin stated the duties of the three Assistant Outbound Foremen positions, including claimant's, consisted of "Assist in general supervision of platforms." It specified the duties of the Inbound position were "To supervise the unloading of Inbound cars and the loading of Columbia trailers; making trap cars."
The Carrier states and, since it is not denied, we must assume that following inauguration of the 40-Hour Week it discontinued acceptance and delivery of less carload freight and made its basic freight house service a Monday through Friday operation but found it necessary to continue to work some forces on Saturdays to handle interline merchandise and the freight of car loading companies; that to protect the Monday through Friday service it maintained positions as required by the volume of traffic moving; that on Saturdays there was a lesser amount of supervision needed, fewer cars to load and unload, fewer bills of lading and waybills to handle as well as a decrease in the routing of shipments into cars according to destination blocking; that therefore on such days it worked an Assistant Foreman position, the duties of which were a combination of some of the Monday through Friday duties of Assistant Foreman, Inbound Foreman, and Route Clerk and consisted, in addition to regular Assistant Foreman duties, of the duties of directing the handling of the inbound freight and the routing and blocking of waybills on outbound freight.
Just what happened to Assistant Foreman (outbound) R. S. Dunn on the Saturdays involved does not appear from the record but it is not claimed that his position was blanked or that he lost any time on such days so that fact or possible questions arising with respect thereto are immaterial and of interest only for purposes of keeping the record straight.
Nor does the record disclose who worked the alleged Assistant Foreman position on Saturdays from September 1, 1949, the effective date of the 40-Hour Week Agreement, until Saturday, February 25, 1950. All we have on that point is the Carrier's statement that it did so. However, it is clear that such position was worked each Saturday, February 18, 1950 to April 29, 1950, a total of eleven Saturdays, and that on all dates mentioned in the claim Check Clerk M. B. Smith, regularly assigned Tuesday through Saturday, with hours 7:00 A. M. to 4:00 P. M., was permitted to leave his regular assignment and fill what Carrier describes as the Saturday Assistant Foreman position from 8:00 A. M. to 5:00 P. M. A fair inference to be derived from the record is that Smith performed similar work on like hours during such interim on the several Saturdays not listed in the claim as filed. It is equally clear that on the days in question the Carrier filled Smith's regular position by calling regularly assigned Check Clerk Murray on the rest day of his position and paid him for such service at the punitive 5419-36 336
rate. Also it is certain that beginning May 6, 1950, the Carrier commenced, and since that date has continued, to use General Foreman John Dunn for performance of the work formerly assigned to Smith.
The record is lengthy and many of the extended arguments advanced by the parties are extraneous and beside the point. We shall therefore direct our attention to what we consider the salient issues involved.
At the outset it should be noted that although verbose the essence of the claim as filed with this Board is for a violation of rules of the Agreement, hence it will be so treated.
In defense of its action the Carrier relies chiefly upon Rule 9 (a) of the current Agreement relating to temporary appointments and argues at great length the position in question was a temporary one, known to be of less than thirty calendar days. Its own statements to which we heretofore referred, to say nothing of its action in continuing to work the position under te present assignment to Foreman Dunn, refute this argument. Besides, it is obvious such position was worked by Smith for eleven Saturdays over a period of time far exceeding the thirty calendar days referred to in the rule. There is no merit to this contention and it is rejected.
The Employes rely principally upon Rule 251/2 of the Agreement which reads:
We cannot agree with the Employes' position the record discloses the work required on Saturdays was no part of any assignment. There can be no doubt that in view of the factual situation existing at the time it was confronted with the heretofore described operational problem, resulting from putting the five day week into effect, the Carrier had the right to establish such relief assignments as were necessary to do the work in question. Rule 31 (2) (a) of the current Agreement provides therefor and we have so indicated in prior decisions (see Award No. 5195) wherein similar rules were involved. Treated as a relief position the work in question was performed on a day which was a part of an assignment, hence the Carrier's action did not result in a violation of Rule 251/2 because it is only applicable when the day involved is not a part of an assignment. The fact the position may not have been properly established can constitute a violation of another rule of the Agreement but that affords no sound ground for a claim the day was no part of any assignment within the meaning of that term as used in Rule 251,4.
However, the conclusion just announced does not mean a denial award is required. The record makes it crystal clear the Carrier's action violated other rules of the current Agreement in at least three particulars, namely, by failing to bulletin the new position, by changing Smith's starting time and by shifting him from his regularlv assigned position. Any one of these violations suffices to sustain a penalty award and to deny this claim, restricting our decision, as we would have to do, to the single ground the employe named therein had failed to show he was personally entitled to the work, whether it be for lack of proper qualifications or for some other reason, would only lead to a multiplicity of claims and additional expense to the parties. Moreover, recognizing its primary function is to settle disputes involving fundamental differences between the parties to an Agreement, this Board has held many times that the claim on behalf of a particular individual is merely an incident which is of no concern to the Carrier whereas here-no claim is made on behalf of any other employe and the allowance of the claim as filed will preclude another claim for the same work. We think the instant case is one in which the foregoing principles should 5419-37 337
be applied. Therefore, we hold the claim should be sustained as a penalty for violation of the rules of the current Agreement but that reparation should be limited to the pro rata rate under a well established principle (see Award Nos. 3955 and 4963).
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and uon 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