UNION PACIFIC RAILROAD COMPANY
(NORTHWESTERN DISTRICT)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5042) that:
(a) Carrier violated the Clerks' Agreement at Portland, Oregon Freight Station on May 19, 1960 to and including July 22, 1960 when it required Clerk D. A. Towle, with assigned hours 8:00 A. M. to 6:00 P. M., Saturdays and Sundays as rest days, to suspend work on his regular Class 1 position of Check Clerk in the Warehouse Office and required him to report out in the Freight House to handle loading and unloading of freight, which is regularly assigned to Class 2 positions.
(b) Loader B. J. Tipton shall be paid one hour and thirty minutes daily except Saturdays, Sundays, and holidays from May 19th to May 27th, 1960 inclusive; and that Loader W. J. Sauer shall be paid one hour and thirty minutes daily except Saturdays, Sundays, and holidays, May 31, 1960 to and including July 22, 1960.
EMPLOYES' STATEMENT OF FACTS: At the Portland, Oregon Freight Station the Carrier maintains a regular force of Class 1 and Class 2 employes and during the months of May, June, and July, 1960, the regular forces consisted of the following:
OPINION OF BOARD: The Employes here allege a violation of the Clerks' Agreement when, during the period set out in the Statement of Claim, the Carrier required a Class 1, regularly-assigned Check Clerk, with hours of 8:00 A. M. to 5:00 P. M., to assist with the loading and unloading of freight at Carrier's Portland, Oregon, freight station. He was so used between 8:00 and 9:30 A. M. on each day of the aforesaid period. Thereafter he resumed his regular duties of checking freight and preparing reports for the remainder .of each of his workdays.
The Employes charge that the Check Clerk was required to suspend work on his regular Class 1 position to handle the duties assigned Class 2 employes and that this was violative of Rule 38, paragraphs (b) and (c) which read as follows:
Claimants were Class 2 employes with assigned hours of service from 9:30 A. M. to 6:30 P. M. Each was a senior "Loader" assigned to the work of loading and unloading freight into and out of cars, and over the freight platform. They claim they were entitled to have been called and used on an overtime basis to perform the work required of the aforesaid Check Clerk.
The Employes' contention that a Class 1 Clerk may not properly be required to perform any Class 2 work under the Scope Rule of the Agreement in evidence is untenable. Class 1 employes are classified as Clerks who regularly devote not less than four hours each workday to those clerical duties described under paragraph (a) of the Scope Rule (Rule 1). Their duties are preponderantly clerical in substance. Class 2 employes include all other covered employes whose job titles and duties are listed and described under paragraph (b) of the same rule. That neither the Scope Rule nor any other rule of the agreement prohibits the performance of Group 2 work by Group 1 employes, nor specifically reserves the performance of all such work to the Group 2 Classification, has been established on this property (see Award Nos. 19 and 29 of SBA No. 173), and that finding is in consonance with the precedential authority of many awards of this Division in interpreting and applying similar scope and seniority rules of the Clerks' Agreements on other properties. The best exposition of the reasons for such holdings may be found in our Award No. 7167 (Referee Carter). There the issue, the schedule rules, and the facts were substantially the same as those present here. In pertinent part, the Board held:
We concur in the reasoning and conclusions of the foregoing Opinion and adopt its findings as applicable and controlling here on the question of violation of the scope and seniority rules of the Agreement.
As to violation of the absorption of overtime rule (Rule 38), the Board has consistently held that to find a violation of the rule the record must contain credible evidence showing either (a) that the carrier suspended an employe (claimant) during his regularly assigned hours to equalize or absorb overtime which he had already earned, or (b), that an employe may not be taken from his regular assignment and used on the work of another position where it would result in depriving the employe of the other position of overtime which would otherwise have accrued (Award 7167, cited supra). Here the latter principle would apply under the rule as interpreted but for the fact there is no evidence that Claimants would have earned any overtime had the Check Clerk not been used. No emergent situation is shown to have existed that would have required payment of overtime to Claimants. Other loaders were on duty at the time the Check Clerk assisted in handling the freight. They have not been heard to claim they were deprived of any over time. To succeed here, the Claimants must establish that they, and they alone, as incumbents of Loader positions were deprived of overtime compensation as a result of using the Check Clerk. Under the facts present here, this cannot be established because there is no evidence that had the Check Clerk not been used, the work would have had to be performed by the Claimants on an overtime basis. Here no one was "suspended" from his regular assignment (as was the Case in Award 2346 cited and strongly relied on by the Employes) ; all worked their regularly-assigned hours; no one earned or was deprived of any overtime. Under these circumstances, it cannot be held that Rule 38 was violated.