Award No. 10519
Docket No. CL-10288
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Wesley Miller, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
CHICAGO GREAT WESTERN RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood
(1) That the Carrier violated the agreement between the Brotherhood and the Carrier effective August 15, 1939. reprinted May 1,
1955. when beginning on or about September 16, 1956 it required
eleven (11)-hour days with regularity on two (2) positions at State
Street Yard, St. Paul, Minnesota, permitting two yard clerks to perform three (3) hours each day on an overtime basis, thereby bringing
about discrimination whereby the earnings of these two employes
were enhanced to the detriment of other yard clerks who were qualified to perform such service; and
(2) That the Carrier shall now be required to compensate F. W.
Schuldt, James Coburn, A. C. Molean, H. Kadel, J. W. Downey, H. G.
Roeller, Wm. J. Van Kleek and K. A. Carlson and/or their successors,
Yard Clerks at State Street Yard, St. Paul, Minnesota, for three (3)
hours each at the rate of time and one-half, for each day beginning
with September 16, 1956, account their being unjustly treated and
discriminated against.
EMPLOYES' STATEMENT OF FACTS:
At the State Street Yard
Office, St. Paul, Minnesota, one employe, G. J. Truhder, Yard Clerk, incumbent
of position with tour of duty 4 P. M. to 12 Midnight, is worked overtime on
an average of three (3) hours every day; and another employe, J. M. Kramer,
Yard Clerk, with tour of duty 7 A. M. to 3 P. M., is called out to perform
service with regularity approximately three (3) hours in advance of the
regular starting time of his position.
The agreement effective between the parties provides in Rule 27 thereof
a basic day of eight (8) hours-not eleven (11); it further provides for the
payment of time and one-half for service performed in excess of eight (8)
hours; such provision does not contemplate an 11-hour day. Further, Rule 24,
Section 2, provides
that employes will have the right of appeal if they consider themselves unjustly treated.
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for services performed in excess of eight (8) hours but such provision does not contemplate an 11 hour day. This practice is a direct
violation of our agreement and brings about discrimination in that
the earnings of two employes are enhanced to the detriment of others."
Check of Third Division Awards fails to develop any cases wherein this
Board has ever been called on to decide whether or not it was a violation of
the agreement to work a clerk three hours overtime. However, the First
Division, in dealing with a rule (Y-C-1) reading:
" * * * all time worked in excess of eight hours' continuous service in a twenty-four hour period shall be paid for as overtime on the
minute basis, at an hourly rate of three-sixteenths of the daily rate."
in Award 13778 held:
"Consequently claimants must be held to have remained on continuous service ending when relieved from duty, four hours and
twenty-five minutes after the customary relief time. Rule Y-C-1
alone, governs and compensation was properly allowed thereunder.
See the following Awards, among others to same effect: Awards 1036,
1297, 3475, 5080, 6504, 8419, 10909 and 10952."
In dealing with claims which are without rule support this Division in
Award 5331 held:
"Except insofar as it has restricted itself by the Collective Agreement or it may be limited by law, the assignment of work necessary
to its operation lies within the Carrier's discretion."
Under the Railway Labor Act, this Division is required to give effect to
the collective agreement as written and adjudicate this dispute in accordance
therewith. In the handling of claim on the property the Employes failed to
furnish any proof in support thereof. In the matter of proof this Division
has held:
"The burden of establishing facts to require or permit the allowance of a claim is upon him who seeks its allowance." Award 4011(also, see Awards 6829, 6828, 6824, 4758, 3523, 3477, 2577 and others.)
Carrier affirms all data in support of its position has been presented to
the other party and made a part of the particular question in dispute.
OPINION OF BOARD: In studying the record before us, we are unable
to find
support for Employes' Claim.
No showing has been made by Petitioners that Rule 24, Section 2, and
Rule 27, Section 1(a) -or either of these contractual clauses-of the applicable Agreement of the Parties, were violated.
Rule 24 (2) provides for a hearing and an appeal on behalf of an employe
who considers himself unjustly treated; however, there is nothing in the record showing that a request was made for such a hearing, or that one was held.
Rule 27, Section 1(a) was not violated under the confronting circumstances, for it does not give preference to any particular employe to overtime
work.
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882
It is not necessary to resolve various procedural issues presented in behalf
of Carrier (and we do not attempt to do so herein), for this Claim fails on the
merits-as above indicated.
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
That the Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 13th day of April 1962.