THIRD DIVISION
(Supplemental)
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6089) that:
EMPLOYES' STATEMENT OF FACTS: Employe H. A. Janke, Jr. is the regularly assigned occupant of Clerk Position No. 5115 in the Store Department Material Division at Milwaukee, Wisconsin, seniority district No. 118. Position No. 5115 is assigned from 7 A. M. to 3:30 P. M. Monday through Friday, with Saturday and Sunday rest days.
Included in the duties of Position No. 5115 is the operation of the Bruning Copyflex Machine, and approximately 5 hours per day is devoted to the operation and care of this machine by employe Janke. See copy of Employe Janke's statement of March 25, 1966, submitted as Employes' Exhibit A.
In lieu of using employe Janke to perform the work of his position No. 5115 on May 12, 1965, employe Robert Sandbom was required, at the direction of District Material Manager H. Marxen, to suspend work on his regularly assigned Typist-Clerk Position No. 5126 and perform the Bruning Copyflex machine work regularly assigned to and performed on Clerk Position No. 5115. See copy of employe Sandbom's statement submitted as Employes' Exhibit B.
Section 6(a), Article II-Holidays of the Agreement dated November 20, 1964 reads as follows:
In accordance with the provisions of the aforequoted, which specifically provide that regularly assigned employes such as Claimant Janke shall be given their birthday off, Claimant Janke was, on his birthday, i.e., May 12, 1965, given the day off for which he was allowed, also in accordance with the provisions of the aforequoted and having otherwise qualified therefor, 8 hours' pay at the pro rata rate.
On Wednesday, May 12, 1965, one of Typist-Clerk Sandbom's regularly assigned work days, he (Employe Sandbom) as the occupant of TypistClerk Position No. 5126, operated the Bruning Copyflex Machine for approximately 20 minutes, which was and is entirely proper in view of the fact that said work is assigned to him and regularly performed by him.
Attached hereto as Carrier's Exhibit A is copy of letter written by Mr. H. R. Marxen, District Material Manager to Mr. J. J. Lipinski, Local Chairman, under date of August 12, 1965; as Carrier's Exhibit B copy of letter written by Mr. S. W. Amour, Assistant to Vice President to Mr. H. V. Gilligan, General Chairman, under date of February 23, 1966, and as Carrier's Exhibit C copy of a letter written by Mr. S. W. Amour to Mr. H. C. Hopper, General Chairman, under date of July 15, 1966.
OPINION OF BOARD: H. A. Janke, Jr. did not work Position No. 5115 on his Birthday Holiday, May 12, 1965. He filed a claim for compensation at the overtime rate for that day on the theory that Employe R. Sandbom did in fact perform work on the Bruning Copyflex Machine which was regularly assigned to and performed by the claimant.
The Employes contend that Janke spends approximately five hours per day working on the Bruning Copyfiex Machine, and that he does 99% of the work done on the machine. Although Sandbom may use the machine on occasion, the Employes continue, his use of it on May 12 was so substantial as to constitute filling the claimant's position, thus entitling Janke to compensation for the day at overtime rates.
The Carrier replies that Janke's position was blanked on the date of his Birthday Holiday, no extra employe being called in. It argues that the copyflex machine was normally used by many employes, including Sandbom, and that the Employes have not proven that his use of it on May 12, 1965 was any greater than normal. It concludes that there is no evidence that Position 5115 was in fact filled, and accordingly the claim must be denied.
There is no question that the Claimant was entitled to have his Birthday Holiday off, and that the Carrier had the right to blank the position on that day (13259). The essential question is whether the Carrier had filled the position by permitting copyflex work normally performed by Janke, to be done by Sandbom.
Janke normally used the copyfiex machine more than other employes, but did not operate it exclusively. Sandbom used it also during his regular duties, although not heavily.
From a review of the record it must be concluded that Sandbom performed work on the copyfiex machine which he was entitled to perform as part of his regular assignment.
After examining the available evidence we are unconvinced that the work done by Sandbom constituted a filling of Janke's position on the date in question.
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