NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the District Committee of the Brotherhood that
EMPLOYES' STATEMENT OF FACTS: J. E. Horton, with a seniority date March 7, 1917, is one of a pool of two messengers assigned to operate on Burlington-Rock Island Railroad trains 12 and 11, Houston-Waxahachie, Texas route, which is located in the Southern Texas Seniority District. His scheduled hours for the month of December, 1950 were 162 hours and 30 minutes, and his rate of pay was $272.70 basic per month.
G. H. Gwinn with a seniority date of July 3, 1945 is a furloughed train. service employe in the same seniority district.
Report at Houston, Tex., for train 12 at 8:30 A. M.; Depart 9:00 A. M.
Copy of Bulletin No. 5 dated January 22, 1950 revealing this schedule of operation is hereto attached (Exhibit A').
the lettered paragraphs of the Rule by its very terms restricts that Rule to Articles V and VII. Now, turning to paragraph (a) of Rule 45-A, General, providing for the establishment of the forty-hour week, this leaves no question that employes covered by Article VIII (Train Service Employes) and Article IX (Over-The-Road Truck Service Employes) are excepted from the provisions of the forty-hour week. We quote:
Train Service Employes covered by Article VIII, and Over-The-Road Truck Service Employes covered by Article IX, by express language are excepted from the provisions of the forty-hour week agreement. Train Service Employes, therefore, are subject only to the specific Article of the Agreement relating to train service, Article VIII, and such general rules of Articles I to IV inclusive, and Articles X to XII as may be applicable.
No provision is contained in Article VIII, applicable to Train Service Employes, such as contained in Article V, Rule 45-A (j) applicable to clerical and station forces relating to work on a day which is not a part of any assignment.
The contention of the Employes that Rule 45-A (j) applies to Train Service Employes as well as station forces is so obviously wrong as to admit of no other finding than that the claim of Messenger Horton for a trip on his layover day December 30, 1950, is entirely without merit and should be denied.
All evidence and data have been considered by the parties in correspondence and in conference.
OPINION OF BOARD: This claim is that the agency violated the agreement through a run around on call of J. E. Horton to make trip on Burlington, Rock Island Trains Nos. 12 and 11, Houston-Waxahachie, Texas route, December 30, 1950, and that he shall be compensated in accordance with agreement rules for salary losses sustained as a result of not being assigned to the trip. Employe states that Rule 45A and Rule 65 have been violated by the agency.
J. E. Horton, with seniority date of March 7, 1917, was one of a pool of two messengers assigned to operate on Burlington, Rock Island trains 12 and 11, each working a round trip every other day. The regular messenger working opposite claimant was absent on December 30, 1950. This was Claimant's lay-over period; his next scheduled run was January 1, 1951. Furloughed messenger Guinn, with seniority date of July 3, 1945, was called to protect the open date of December 30, 1950.
The employes state that Guinn had, prior to this assignment, worked in excess of one hundred seventy (170) hours in the month of December, 1950, and when this work was given to him, it was in violation of Rule 45-A (j) and the seniority rights of the claimant. The Agency states that Guinn was the oldest available furloughed train service employe in the same seniority district and that he was called because the incumbent of that position had bid in another job. The Agency relies on Rule 19, Article II, pertinent parts of which read as follows:
There is no dispute between the parties that Guinn was the oldest available furloughed train service employe and after a careful reading of the docket and the rules cited by the Employes as having been violated by the Agency, it is our belief that Rule 19 governs this claim and that the Agency did not violate this rule. Therefore, the claim should be denied.
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 Employe involved in this dispute are respectively Carrier and Employe 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