STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood:
EMPLOYES' STATEMENT OF FACTS: The Carrier designated position of Report Clerk, rate $12.12 per day, Florida Street Station St. Louis, as a five day position with application of the Forty Hour Week Mules of the Chicago, March 19, 1949 National Agreement. A. M. Cooper was assigned to this position by Bulletin No. 76, November 15, 1949. Employes' Exhibit No. 1.
Effective December 3, 1949, Carrier changed this position from one of five days per week to one of seven days per week with Saturdays and Sundays as the designated rest days of the regular incumbent, Mr. Cooper. The Carrier did not, however, establish a regular relief assignment to afford relief on the designated rest days of the regular assignee-Cooper-pursuant to Rule 27-3 (e) (Regular Relief Assignments), neither did they require the work that then became "work on unassigned days" that is, not a part of any assignment, to be performed by an available extra or unassigned employe who did not otherwise have forty hours of work that week in accordance with the 'rov'sons of the "Work on Unassigned Days" Rule 32-8 (Forty Hour Week -les; . Further they did not call the regular employe, claimant, as required by the Rule. Instead they removed William Baker, a regular assigned relief Check Clerk, off his regular assignment, i. e.,
It is clear from the above, that the organizations in presenting their case to the Emergency Board plainly indicated they desired a shorter work week without reduction in pay.
Further, the Emergency Board's report indicated it was their intention to apply the forty-hour principle in the manner which would be the least disturbing and costly to the industry.
This intent is further evident from Article II. Section 1(g) (7) of the Forty-Hour Week Agreement in which it is stated regarding problems arising in connection with non-consecutive rest days:
The Carrier respectfully submits there clearly was no violation of Rule 32-8 in the present case. Rest days were properly established and the relief on Saturday and Sunday was properly handled in accordance with the rules.
Without prejudice to its position, as previously set forth herein, that the claim is entirely without support under the res, the Carrier submits that the claim that Report Clerk should receive an allowance at time and onehalf rate for work not performed is contrary to the well established principle consistently recognized and adhered to by the Board that the right to work is not equivalent to work performed under the overtime and call rules of an agreement. Please see Awards 4244, 4645, 5195, 5437, and 5764. There are many others also.
In conclusion, the Carrier respectfully reasserts that the claim of the Employes is entirely without merit or support under the rules and should be denied in its entirety.
OPINION OF BOARD: This case presents the same issue as Award No. 8304 and is governed by that Award. The claim here is not a continuing one, but covers a specific period of time which ended prior to the final declination on the property. It is therefore sustained as presented, but at the pro rata, not the penalty, rate.
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; 8305-IO 551