BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the rules of the current Clerks' Agreement when it required Tallyman C. W. Cottrell, a Group 1 employe to work alone on August 4, 1951, thereby performing his own trucking, work which is properly assigned in Group 3.
2. That Trucker J. J. Martin, who did not work on that day, as he was not notified or called by the Carrier for that purpose, be paid at the pro rata rate for August 4, 1951.
EMPLOYES' STATEMENT OF FACTS: At the Clarksburg Freight Station, Clarksburg, W. Va., nine tallymen and nine truckers were instructed to report for duty on Saturay, August 4, 1951. One trucker failed to show up. Carrier proceeded to work nine tallymen and eight truckers, which required one tallyman to work alone. Consequently, he performed a considerable amount of trucking on that date.
We incorporate the Memorandum of Conference held at Grafton, W. Va., on May 28, 1952 as Employes' Exhibit No. 1 and Form 762-A signed by Regional Accountant W. E. Smith on August 27, 1951, as Employes Exhibit No. 2.
CARRIER'S STATEMENT OF FACTS: In anticipation of an expected volume of business nine tallymen and nine truckers were instructed to report for work at the Clarksburg Freight Platform, Clarksburg, W. Va., on Saturday, August 4, 1951. One of these truckers failed to report. The eight available truckers were assigned to work with eight tallymen and Tallyman C. W. Cottrell was required to do his own trucking.
POSITION OF EMPLOYES: It is the contention of the Employes that Carrier violated the rules of the current Clerks' Agreement by requiring or permitting Tallyman C. W. Cottrell, a Group 1 employe, to work alone, thereby performing his own trucking, work which is properly assigned in Group 3.
Thus the Carrier, in Award 6140, argued it was essentially immaterial how much time a Group 1 employe devoted to work apart from strictly clerical work. The Group 1 employe was paid the higher rate. Actually there is no showing here, and the Organization on this property has made no showing, that on the ate of the claim the tallyman performed less than four hours clerical work.
In terms of the factual record in this case, in terms of the rules appearing in the applicable agreement and in terms of decisions already reached before this labor tribunal in similar cases involving similar disputes, the Carrier asserts that the claim made here is not valid.
The Carrier respectfully requests that this Division find this claim as being without merit and that it act to deny it.
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.
OPINION OF BOARD: The facts in this record are not in dispute. In brief, Carrier instructed nine (9) tallymen (Group 1 employes) and nine (9) truckers (Group 3 employes) to report for work on Saturday, August 7296-11 59
4, 1951. One trucker failed to report and Carrier did not call a trucker to take his place. The result was that one tallyman did his own trucking.
The question presented Was the failure to supply a ninth trucker a violation of the rules of the Agreement?
It is alleged that Claimant Martin was an available employe and was willing to work on this date. And it is contended that Carrier was obliged to call another Group 3 employe on a seniority basis to fill a Group 3 vacancy.
Carrier contends, in brief, that under Group 1, Rule i (a), Clerks are defined as "Employes who regularly devote not less than four (4) hours per day to the writing and calculating incident to keeping records and accounts" etc. and that this language contemplates the combination of nonclerical work with clerical work. Citing in support of this position Rule 2 (a) involved in denial Award 7167. Also cited is Awards 6140 and 2011.
We are of the opinion that a different situation is presented here than that considered in Award 6140. This is not a dispute involving a tallyman assisting a trucker, or can it be said to meet the situation considered in Award 7167 where it was contended Claimants were used to absorb overtime. The claim here presents a situation where nine truckers were instructed to report and only eight appeared for work. The claim is made on behalf of a trucker not called although available, not on behalf of the tallyman, who did trucking on the date in question.
It is contended in this record that only eight truckers were needed, however, at the time instructions were given nine truckers were called to work with nine tallymen and trucking was done by the ninth tallyman. The situation presented is not that considered in the Awards cited, Awards 6140 and 7167.
We are of the opinion on this record Claimant Martin was entitled to be called. The contention that he was not needed is not borne out by this record.
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
The instant Award is based upon the erroneous premise that the claimant trucker herein was available and needed. The Carrier had no advance notice 7290-12 60
that a trucker would fail to show up. To have called claimant would have resulted in considerable delay in any event, and the record shows that at that time it had developed that there wasn't enough work for an additional man. No rule was shown, and there is none, which required Carrier to call an additional man under te circumstances which had developed. Consequently the instant Award requires the Carrier to pay for eight hours' work which was shown to be non-existent.
Furthermore, the distinctions made by the majority herein between the instant case and the cases covered by Awards 7167, 6140 and 2011, in which this Division denied the claims, are distinctions without a difference insofar as the issue is concerned, and there is no support in the rules therefore. In all four cases, the issue involved was the right of employes in Group 1 to perform work in other Groups in which they also held seniority.