NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Frank Elkouri, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
THE BALTIMORE AND OHIO RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express and Station Employes, that
1. The carrier violated Rules 1(c)1 and other rules of the
Agreement at Glenwood, Pa., when effective September
28, 1949, it abolished Position No. 72-1-781, Second Trick
Enginehouse Clerk at Glenwood, Pa., and assigned part
of the clerical work attached thereto to General Foreman
and Assistant Engine House Foreman, who are not covered by the Clerks' Agreement.
2. That Leo K. Heidenreich, extra clerk, be compensated at
the rate of $12.19 per day for each day Position No. 72-1781 was abolished, beginning with September 28, 1949,
and concluding with November 25, 1949.
3. That Robert W. Smith, former incumbent on Second Trick
Engine House Clerk who was obliged to displace Third
Engine House Clerk, be compensated for a differential in
rate of pay based on time and one-half for all hours
and/or days worked outside of his original assignment
beginning with September 28, 1949, until his position was
restored.
4. That Frank Wytiaz, former incumbent on Third Trick
Engine House Clerk, who was obliged to displace Relief
Engine House Clerk, be compensated for a differential in
rate of pay based on time and one-half for all hours
and/or days worked outside of his original assignment,
beginning with September 28, 1949, until position was
restored.
EMFLOYES' STATEMENT OF FACTS:
Prior to September 25, 1949, the
following positions existed at Glenwood Roundhouse:
1. Engine House Clerk, 1st trick No. 72-1-780 hours 7:59
A.M. to 3:59 P.M. rest days Sunday & Monday, rate
$12.19.
(4007
6325-14
413
than the employe to whom the work was assigned in the event he
was deprived of it. In the absence of Agreement to the contrary, the
general rule is that 'the right to work is not the equivalent of work
performed so far as the overtime rule is concerned. The overtime
rule itself is consonant with this theory when it provides that `time
in excess of eight (8) hours exclusive of the meal period on any day
will be considered overtime! The overtime rule clearly means that
work performed in excess of eight hours will be considered overtime.
Consequently, time not actually worked cannot be treated at the
overtime rate unless the Agreement specifically so provides. This
conclusion is supported by this Division Awards 2346, 2695, 2823,
and 3049."
Based them on the
Divisions Findings, it is evident that the wage claims
as now presented by the claimants found herein for penalty compensation
based on the overtime rate of pay must necessarily be held to be totally
without merit.
Based on the facts and circumstances involved in this case and on the
basis of all that is contained herein, the Carrier respectfully requests the
Division to hold this protest, the wage claims emerging therefrom, as being
totally without merit and to deny them accordingly.
This dispute has been handled in accordance with the provisions of the
Railway Labor Act, as amended. No agreement on a settlement thereof
having been reached between the parties, it is hereby submitted to the
National Railroad Adjustment Board for decision .
(Exhibits not reproduced.)
OPINION OF BOARD:
As a result of a general strike in the coal and
steel industries the Carrier abolished Position No. 72-1-781, Second Trick
Enginehouse Clerk at Glenwood, Pennsylvania, effective September 28, 1949.
The position was restored on November 25, 1949, and the claim herein covers
the intervening period. The Employes make the following statement regarding the right of the Carrier to abolish the position:
"This Committee does not deny the existence of a coal and steel
strike at the time this position was abolished. We do not deny that
Carrier is within its rights -to abolish positions when the work on
such positions has substantially disappeared. We have previously
admitted that as a direct result of the coal and steel strike the dispatchments were somewhat reduced during the tour of duty of the
Second Trick Enginehouse Clerk position"
But the Employes object that although other clerical positions under the
Clerks' Agreement remained in existence at this location, certain Foremen not
covered by the Clerk's Agreement performed some of the work that would
have been performed by the incumbent of the abolished position had it not
been abolished. The Employes conclude that for this reason the position was
improperly abolished.
The Record clearly establishes that the only part of the work of the
abolished position that was performed by any Foreman was 45 minutes per
night performed by the Night General Foreman. The Record further establishes that the particular type of work so performed, involving use of the telephone in the General Foreman's office, does not belong exclusively to
employes under the Clerks' Agreement, but is incidental to the Foreman's
position and was performed by the Foreman prior to the abolishment of the
6325-15
¢L¢
Clerk position. The Employes have failed to prove that any Foreman performed any work belonging exclusivelyto employes under the Clerks' Agreement. This recognized, the claim must be denied. See Award 3494.
FINDINGS:
The Third Division of the Adjustment Board, after giving the parties
to this dispute due notice of hearing thereon, and upon the 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 Adjjustment Board has jurisdiction over
the dispute involved herein; and
not the Carrier did not violate the agreement.
AWARD
Claims (1), (2), (3) and (4) all denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: (Sgd.) A. Ivan Tummon
Secretary
Dated at Chicago, Illinois, this 10th day of September, 1953.