STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes that the Carrier violated the Clerks' Agreement:
EMPLOYES' STATEMENT OF FACTS: There is in effect a Rules Agreement, effective September 15, 1938, covering Clerical and Station Employes, between the Carrier and the Brotherhood, which has been amended from time to time. The Agreement and its amendments are on file with the National Railroad Adjustment Board and are hereby incorporated in this Statement of Facts.
On September 6, 1954 the Yard Clerk job held by R. E. Wright was annulled for the one day (Labor Day). The duties of the position were then distributed to the Operator-Clerk and the Yardmaster. Whereupon, Mr. R. E. Wright made claim for time and one-half rate of pay, because of the usurpation of his duties on that date. The duties regularly performed by Mr. Wright on his regularly assigned position were performed on the Holiday by the Yardmaster and Operator-Clerk, persons not covered by the Clerks' Agreement.
On October 4, 1954 Mr. Wright, wrote the General Yardmaster as follows:
That Award denied claim to eight hours' pay in lieu of pay for actual time worked on a holiday, notwithstanding a guarantee rule heavily relied upon by Employes in that case, and Carrier here directs the attention of your Board to the fact that the agreement under which instant claim is progressed contains no guarantee rule. In the absence of such rule, and in the light of the applicable special and controlling rules governing work on holidays, there can be no valid claim by an employe whose services are not needed to work on a holiday.
The instant claim amounts to a demand that the employe be worked overtime when no overtime work was required, and your Board has held in Awards too numerous to mention that the overtime rate is not applicable under any circumstances for time not worked.
The reasoning of Award 7294 is equally applicable in the circumstances of the instant case. Of interest in this connection is statement in Position of Employes in the Award referred to reading, "* * * we are fully aware that the National Railroad Adjustment Board has held the Carrier may blank a position if it does not need it on any day, * * *".
Also, it is stated in Findings of Second Division Award 2070, Referee David R. Douglass:
Carrier has shown that there is no requirement or authority for the payment of the claim here made or for any additional payment, and respectfully requests that it be denied.
All data submitted herein has been presented in substance to the duly authorized representatives of the Employes and is made a part of the particular question in dispute.
The Carrier is making this submission without having been furnished copy of Employes' petition and respectfully requests the privilege of filing a brief answering in detail the ex parts submission on any matters not already answered herein, and to answer any further or other matters advanced by the Petitioner in relation to such issues.
OPINION OF BOARD: A careful review of the record reveals that Petitioners have failed to meet the burden of proof by showing that the work regularly assigned to Claimant during his regular work week was actually performed on Labor Day, September 6, 1964, by the Operator-Clerk and Yardmaster, therefore, claim will be denied. 961 7-i s 929