THIRD DIVISION
(Supplemental)
CARRIER'S STATEMENT OF FACTS: Prior to the claim date the Carrier's telegraph office force at Pensacola, Florida consisted of Telegrapher position No. 14, occupied by J. M. Berrier, with assigned hours of 8:00 A. M. to 4:00 P. M., Monday through Friday; and Telegrapher position No. 15 occupied by F. E. Holman, with assigned hours 8:30 P. M. to 4:30 A. M. Monday through Friday with assigned call 9:15 P. M. to 11:15 P. M. on Saturday and 9:15 P. M. to 12:05 A. M. on Sunday.
Telegrapher position No. 15 was discontinued effective May 16, 1962 and the occupant, Claimant Holman, exercised seniority displacement rights on Telegrapher position No. 14 at Pensacola displacing Telegrapher Berrier. Claimant Holman remained on Telegrapher position No. 14 until September 1, 1962 when he submitted his resignation to the Carrier. Telegrapher Berrier returned to position No. 14 on September 1, 1962.
OPINION OF BOARD: This case involves the abolition of a position and the assignment of an alleged "substantial" portion of the work to a remaining employe to be performed on an overtime basis.
Carrier denied the claim (R-10 and 11) on the property asserting (1) No rule was cited by the Organization which would restrict the Carrier from assigning overtime, (2) There was no "showing" that a substantial part of the work of the abolished position was assigned to the remaining telegrapher; and (3) The work in question was not being handled in violation of the Scope Rule.
We can agree with Carrier's statement above referred to, except item (2) thereof, which is the real issue in our analysis of the claim.
In Award 14906 (Dolnick), we cited Awards 896 and 5235 and concluded that where the Carrier abolishes a position and assigns a subustantial portion of the work of the abolished position to a surviving position, to be performed
on an overtime basis, the Carrier has violated its Agreement with the Organization. The foundation for this reasoning is expressed in the Agreement between the parties in the instant case in Article II and Article II-A. The clear intent and contemplation of the parties is to establish the forty-hour work week as a reasonable working condition. Overtime was recognized as an essential method of administering the business of the Carrier. However, the overtime provisions of the Agreement do not support the combining of positions where such combination substantially encroaches upon the employee contractual rights pertaining to the forty-hour work week.
What is a "substantial" portion of the work of the abolished Position? The answer to that question must be based upon the effect produced by the act complained of. If the effect of the Carrier's act in this case defeats the purpose of the provisions of the contract pertaining to the forty-hour work week, then the portion of the work assigned, is "substantial."
The Claimant, Holman, was required to work the following schedule as a result of the Carrier's act:
After deducting one hour for a meal period for five days, we find the employe working a total of fifty-five hours per week. The schedule does not permit the employe eight consecutive hours of sleep and comparatively little time for leisure.
We conclude that the effect of the Carrier's act encroaches upon the employe's contractual rights relative to the forty-hour work week and, therefore, the portion of the work of the abolished position, which was assigned to said employe, was "substantial" within the meaning of that term as applied in our previous decisions above cited.
"All other employes who were displaced as a result of this improper action"' were indisputably identified on the property.
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