Rule 7 certainly provides for the use of an extra or unassigned employe who will otherwise not have forty (40) hours of work that week. Lyle Curry who was used had not otherwise had forty (40) hours of work in each of the work weeks for extra or unassigned employes in which the claim dates fell.
The contention was made in some of the correspondence that the work of entering car records in the car record book was exclusively assigned to Clerk Reynolds. This contention is not supported by the facts. In this connection attention is directed to a statement of work performed on April 16, 1959, by Clerk Reynolds in which he does not show any time consumed in entering car records or posting in the car record ("PD book"); whereas, Clerk McGriff on the same date stated he consumed four (4) hours and forty (40) minutes on that particular day in the performance of such work. See Carrier's Exhibits B and C herewith.
Further in this connection, attention is directed to notices issued by former Acting General Manager Garelick on September 21, 1953, and October 22, 1953, directing that certain other clerks spend time in so called "PD" duties. See Carrier's Exhibits D and E.
The contention of the petitioner in this case amounts to an assertion that a regularly assigned employe must be called to work on his rest days at time and one-half rate, even though his rest days are included within the assignment of a regular relief employe, and that regular relief employe actually works on the days in question, to perform work which is not, either by agreement or otherwise, performed exclusively by the claimant regularly assigned employe.
The rules of the clerks' agreement do not obligate the Carrier to use a regularly assigned employe on his days off and pay him the punitive rate when there is an extra or unassigned employe available who has not already had forty (40) hours of work in his work week. The rules of the clerks' agreement are not susceptible to such a construction, and such a construction would most certainly be contrary to the intent and purpose of Rule 6 of that agreement.
Further, claim is presented on behalf of Mr. Reynolds for payment at the rate of time and one-half. The claim is clearly one for a penalty. There is no provision in the clerks' agreement for the payment of the time and one-half penalty rate except where the person to whom it is paid performs work.
The claim is not supported by the rules of the clerks' agreement, and the contentions of the petitioner should be dismissed and the claim denied.
OPINION OF BOARD: At the time this claim arose, L. H. Reynolds, the Claimant was regularly assigned as a Clerk on a work-week of Tuesday through Saturday, with Sunday and Monday as assigned rest days. Clerk S. E. Allan worked a regular rest day relief assignment on Sunday and Monday doing the same general work as Mr. Reynolds.
On Sunday, November 8, 1959 and Monday, November 9, 1959, Mr. Reynolds was off on his usual rest days, and Relief Clerk Allan was on his usual relief assignment. However, another employe Lyle Curry described by the Carrier as an "extra or unassigned clerk" was also put on for those two days, spending most of his time entering car records in the record book, the so-called "P.D. Book", one of the tasks usually performed at various times by Mr. Reynolds as well as by other clerks. 12354-9 943
The Claimant and his Organization protested, demanding that Mr. Reynolds be paid at the rate of time-and-one-half for eight hours work on Sunday and for eight hours work on Monday, which hours it is claimed, were improperly assigned to Curry instead of to Reynolds.
We must deal initially with the thresbhold problem of identifying the position presented by the Claimant to the Carrier before the dispute was submitted to this Board, inasmuch as the Carrier contends that said position was altered in the Employe's ex parte submission.
The record contained in the docket bears out the Carrier's contentions that new grounds and allegations appear in the Employes' ex parts submission which were not part of the claim on the property.
The correspondence reproduced in the docket and not questioned by the Petitioner as to authenticity, accuracy or completeness shows two letters in support of the claim. The first is dated December 28, 1958 and is from the Local Chairman of the Employe's Organization to the Carrier's General Manager. This letter quotes in full the two short communications by the Claimant in initiating his claim. These make only two statements in support of the claim:
Under "Employes' statement of facts", it is alleged in the letter of December 28th that on the two days in question, "the carrier called Mr. Lyle Curry an extra employe to perform work on the PD book". It is further alleged that the work done was "a part of employe L. H. Reynolds regular assigned duties" and that the work done by Curry was on the PD book. The statement of facts concludes by quoting Rule 7 of the Agreement, emphasizing the words "which is not a part of any assignment".
Under the caption "Position of employes", Mr. Curry is again referred to as an "extra employs". The statement in full therein is:
The employes contend in view of the facts and circumstances existing in connection with the case and the language of the rules agreement, that a violation took place when the Carrier called extra employe Lyle Curry instead of employe L. H. Reynolds to perform the work in the PD book on Nov. 8 and 9, 1959 and request that employs L. H. Reynolds be compensated as set forth in the above 'Statement of claim."'
It will be seen from the foregoing that the Petitioner takes for granted the characterization of Curry as an "extra employe" and does not challenge Curry's classification by the Carrier as an extra clerk.
In the second and final pre-submission letter sent by the Employe's Organization, there is a reference to Curry which only a hindsight view may reconstruct as a hint of the position later to be taken more explicitly and then to be put on newly-stated grounds for the first time. The letter, sent to Mr. Devlin on March 10, 1960 by the Brotherhood's General Chairman Gilligan contains the statement: 12354-10 944
The passing allusion to "so-called extra clerk" and the statement regarding an extra board are not enough to establish the posture towards the Carrier on behalf of the Claimant, which was later expressed in the allegations and arguments addressed to this Board. In its ex parte submission, the Petitioner alleges that Mr. Curry did not have seniority standing as a clerk, that he had seniority status instead as a telegrapher and makes certain other statements concerning Curry's alleged intermittent or simultaneous employment on another railroad and here as a telegrapher. The Carrier's statement to us stands unrefuted that neither the Claimant nor his representatives made any such claims during any of the discussions on this controversy on the property.
Although the Carrier responds to this newly-taken position in its reply to the employes' ex parte submission, we must find that neither the new facts and position nor the answers thereto can be properly before us. This is firmly established by the Rules of Procedure in Circular No. 1 of the N.R.A.B. and by a line of Awards supporting these rules when a change is made as here from the case on the property to one on different grounds before this Board.
We must say here, as we did in Award 10416 wherein the Board denied that claim on the grounds of deviation from the one handled on the property, that:
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