Since all dates here involved were duly assigned rest days of the respective claimants, it is obvious that the suspension of work during regular hours to absorb overtime is not involved.
In contrast to the rules quoted and discussed above and upon which petitioner is relying in this case, attention is directed to Section (a) of the Rest Days rule-Rule 7-of the current agreement, reading:
By the clear provisions of that rule the only restriction affecting carrier in the matter of changing of rest days is that employes affected thereby will be given 96 hours' written notice of such change. In each of the cases here involved that has been done and there is no dispute in this Docket with respect to that fact. Furthermore, it will be noted that, neither this nor any other rule of the agreement requires a change in work week whenever there is a change in rest days.
Clearly the facts, rules, intent of such rules and established practice sustain carrier's position in this docket, and claim should be denied.
All data herein submitted have been presented to the duly authorized representative of the employes and are made a part of the particular question in dispute.
The carrier reserves the right, if and when it is furnished with the submission which has been or will be filed ex parte by the petitioner in this case, to make such further answer as may be necessary in relation to all allegations and claims as may be advanced by the petitioner in such submission, which cannot be forecast by the carrier at this time and have not been answered in this, the carrier's initial submission.
OPINION OF BOARD: This is a dispute between The Order of Railroad Telegraphers and Southern Pacific Company.
Claimant Kruse Davis was assigned the position of Agent-Telegrapher at Coolidge, Arizona, assigned hours 8:00 A. M. to 4:00 P. M., a seven-day position.
Prior to the time a change was made in his rest days, his workweek was as follows:
On Sunday, October 14, 1956, Davis began a work week, this work week was as follows:
This completed the work week beginning on October 14. He was not permitted to work on Sunday, October 21. Carrier contended that this was a rest day of his new work week; Employes contend that a work week cannot start with a rest day.
Claimant W. H. Storts was assigned to the position of 3rd Towerman, Los Angeles River Station, Los Angeles, California, with assigned hours 12 Midnight to 8:00 A. M., a seven-day position.
Prior to the time a change was made in his rest days, his work week was as follows:
On Monday, January 21, Claimant began a work week. He worked on Monday, January 21, and Tuesday, January 22, but was not permitted to complete the work week as he was idled on Wednesday, January 23, and Thurs- 11474-29 998
,day, January 24. Carrier contended these were the rest days of his new work week; employes contend that a work week cannot start with a rest day.
Claimant W. T. Jones, Jr., was assigned to the position of 3rd TelegrapherClerk-Towerman at Wellton, Arizona, assigned hours 12 Midnight to 8:00 A. M., a seven-day position.
Prior to the time a change was made in his rest days, his work week was as follows:
On Sunday, March 10, Claimant began a work week. He worked on Sunday, March 10, Monday, March 11, Tuesday, March 12, Wednesday, March 13, but was not permitted to complete the work week as he was idled on Thursday, March 14. Carrier contended that this was a rest day of his new work week; employes contend that a work week cannot start with a rest day.
Claimant, J. C. Mann, was assigned to the position of 1st TelegrapherClerk at "FD" Phoenix, Arizona, assigned hours 8:00 A. M. to 4:00 P. M., a seven-day position.
Prior to the time a change was made in his rest days, his work week was as follows:
On Tuesday, March 19, Claimant began a work week. He worked on Tuesday, March 19, Wednesday, March 20 Thursday, March 21 Friday, March 22, Saturday, March 23; rest days Sunday, March 24 and Monday, March 25. He was not permitted to work on Tuesday, March 26. Carrier contended that 11474-so 999
this was a rest day of his new work week; employes contend that a work week: cannot start with a day of rest.
Claimant, J. F. Wells was assigned to the position of 2nd TelegrapherClerk at "FD" Phoenix, Arizona, with assigned hours 4:00 P. M. to 12 Midnight, a seven-day position.
Prior to the time a change was made in his rest days, his work week was as follows:
On March 19, 1957, Claimant began a work week. He worked on Tuesday, March 19, Wednesday, March 20, Thursday, March 21, Friday, March 22, Saturday, March 23; he observed the rest days Sunday, March 24 and Monday, March 25, which completed the work week. He was not permitted to work on Tuesday, March 26 and Wednesday, March 27. Carrier contended these were rest days of his new work week; employes contend that a work week cannot start with a rest day.
In Award 5129 a similar set of circumstances existed. In that award the Board ruled:
This award has been followed in the following Awards: 6519, 7324, 8103, 8144, 8868, 10289, 10517, 10875 and 10908.
We do not see sufficient reason to depart from the holding expressed in the foregoing opinions. For that reason we find that the Agreement was violated.
FINDINGS: The Third Division of the Adjustment Board, 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 controlling agreement contains no weekly guarantee, and the daily guarantee rule expressly provides there shall be no guarantee for properly designated rest days. Other provisions in the agreement explicitly provide procedures for designating rest days, and admittedly Carrier had complied fully with those clear provisions in designating the days involved in this claim as rest days. It is elementary that additional restrictions upon designating rest days which are not found in the agreement cannot be imposed by this Board. It is thus apparent on the face of the record that claimants were in error in claiming that the involved dates were "workdays," and no valid reason can be given for sustaining their claim. 11474-32 1001
The basis given for sustaining the claim is the patently erroneous conclusion that a "similar set of circumstances existed" in Award 5129 where the Board sustained the claim. The circumstance that was expressly held controlling by the Board in Award 5129 was the fact that the guarantee provisions of the controlling agreement in that case explicitly prohibited the carrier from assigning the claimant more than one rest day in "any consecutive period of seven (7) days." There is no such guarantee provision in the controlling agreement in Award 11474; hence, the reason given by the Board for sustaining the claim in Award 5129 does not exist in Award 11474. Award 5129 applied the basic rule that this Board's powers are limited to interpreting existing Agreements and we cannot properly disregard agreement provisions which the parties have adopted. Under that same basic rule, Award 11474 should have denied the claim therein.
In setting out the facts, Award 11474 makes repeated references to a new "workweek" of each claimant. Since there are no provisions in the controlling agreement creating a weekly guarantee, the creation of a new workweek commencing on a different day of the calendar week would not be material to this claim in any event; but, we feel constrained to point out that carrier's consistent position throughout the record has been that the change in the rest days of each of the claimants did not bring about any change in any workweek hence there was no new "workweek." Carrier's position in this regard had already been sustained by this Board in Award 6211 wherein the creation of a new workweek was of controlling significance because the agreement of the clerks which was there in evidence contained a weekly guarantee.