NATIONAL RAILROAD ADJUSTMENT BOARD
H. Raymond Cluster-Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
ST. LOUIS SOUTHWESTERN RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood:
(a) That Carrier violated rules of the Clerks' Agreement in
filling position of Shed Foreman at Malden, Missouri, on the sixth
day-Saturday-of each week.
(b) That Loran Shipman and his successors, if there be any,
be paid for all time worked by the improperly assigned employe at
overtime rate with the minimum of eight hours commencing Saturday, April 29, 1950, and the Saturday of each week thereafter until
the rules violation is corrected.
NOTE: Reparation due employes to be determined
by joint check of Carrier's payrolls and such other reference that may be deemed necessary to establish proper
claimant and the amount due.
EMPLOYES' STATEMENT OF FACTS: The normal station force subject to the provisions of the Clerks' Agreement at Malden at the time this
dispute arose comprised the following:
NAME OF
POSITION ASSIGNEE
Demurrage Clerk J. L. Kalkbrenner
Yard Clerk J. D. Wagster
Shed Foreman Loran Shipman
Trucker G. E. Goza
Trucker R. L. Camp
Trucker A. O. Summers
The position of Shed Foreman was bulletined as a five day per week position,
with rest days Saturdays and Sundays, on April 10, 1950. Employes' Exhibit
No. 1.
Vacancy was assigned to the Claimant, Loran Shipman, April 19, 1950.
Employes' Exhibit No. 2.
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"(7) The least desirable solution of the problem would be to
work some regular employes on the sixth or seventh days at overtime rates and thus withhold work from additional relief men."
The intent thus was to spread the work, and it is clear that the provisions of the agreement should be construed with that thought in mind.
The fact that no claim was filed for over one year is itself good evidence
that the Employes considered the relief proper in the present case. If they
had considered that a violation of rules existed no doubt they would have
filed claim promptly. The Board has held that employes must exercise due
diligence if a claim is to be made.
Award 2811 denied a claim of a pumper assigned less than six days
a week because of delay in making and progressing claim. The assignment
was in effect from April 16, 1933 until January 1937, without protest. The
Opinion included the following:
"Under circumstances such as we have related when the claim
involves merely the right to compensation, we are certain the far
greater number of our decisions and those which are sound in
principle hold to the rule that the doctrine of estoppel is applicable
and that claims similar in character to this one are barred because
of inaction and delay on the part of the party making them and
that their lacbes in failing to present them within a reasonable time,
make it unjust and inequitable that they should be permitted to
recover. * * *"
The Carrier respectfully submits there clearly was no violation of the
rules in this case. It was proper to use Trucker Goza to relieve the Shed
Foreman and use an extra Group 3 employe as Trucker in place of Guza.
Without prejudice to its position, as previously set forth herein, that
the claim is entirely without support under the rules, the Carrier submits
that the claim that Shed Foreman should receive an allowance at time and
one-half 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.
All data herein has been presented to representatives of the Employes.
(Exhibits not reproduced)
OPINION OF BOARD:
This case presents the same issue as Award
No. 8303 and is governed by the Opinion therein. The claim is therefore
sustained at pro rata, not penalty, rate except for the period from June 19,
1952, the date of the final declination on the property, until June 10, 1955,
the date of Petitioner's notice of intention to file with the Board, for which
period no compensation shall be paid.
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 apprrived June 21, 1934;
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That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated.
AWARD
Claim sustained to the extent indicated in Opinion and Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this 8th day of April, 1958.