STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Texas and Pacific Railway, that:
EMPLOYES' STATEMENT OF FACTS: The Agreement between the parties, effective May 15, 1950, as amended and supplemented, is available to your Board and by this reference is made a part hereof.
At the time cause for this claim arose, Claimant H. J. Gammons was the regularly assigned occupant of a rest day relief position established pursuant to the provisions of Article 6, Section 1(e) of the Agreement. Tuesdays of each week this position was assigned at Longview, Texas from 3:59 P. M. until 11:59 P. M. March 31, 1964 fell on Tuesday.
There are three shifts at Longview, Texas providing continuous service around-the-clock seven days per week. The shifts change at 7:59 A. M., 3:59 P. M. and 11:59 P. M. On March 31, 1964, the third trick operator, R. J. Bates, notified the Carrier that he would be unable to protect his position which had a starting time of 11:59 P. M. The Carrier, for some reason or another, decided to use Claimant Gammons to fill this position and to use Operator L. L. Smith, regular second trick operator idle on rest day, to, fill the second trick beginning at '3:59 P. M. It was unable to contact Claimant Gammons prior to 3:59 P. M. and he showed, up at his work location a few minutes prior to the
The Claimant was allowed two hours at punitive rate for reporting for duty in addition to the eight (8) hours far service performed on third trick, 12:00 MN to 8:00 A. M.
OPINION OF BOARD: H. J. Gammons held a regularly assigned relief position on the second trick at Longview, Texas. On March 31, 1964, the third trick operator, R. J. Bates, notified Carrier that he was unable to report for work. Carrier made unsuccessful efforts to inform Mr. Gammons not to report for his scheduled second trick, but instead to work the third trick in place of Mr. Bates. When Mr. Gammons appeared for work at his second shift reporting time, he was notified that he would not be used on his regular assignment and was told to report for work at 11:59 P. M. starting time of the third trick. He worked the third trick, for which he was paid at the pro rata rate. Claim was filed for eight hours pay because he reported for work on the second trick and was not used. Mr. Gammons was allowed compensation for two hours at the time and a half rate but requests eight-hour pay at the pro rata rate and also seeks compensation for eight hours at time and a half rate for service performed on the third shift because be worked outside the hours of his regular assignment.
Carrier contends that the claim should be dismissed because it was amended on appeal to Carrier's highest officer to include a request fur time and a half rate of pay on the third trick in addition to the claim for one day's pay at pro rata rate for not being used on the second shift. Such an amended claim, it maintains, is in violation of Article V of the National Agreement of August 21, 1954.
Carrier also states that Article 8 is applicable in this dispute. In accordance with this Article it asserts that Mr. Gammons, as a regularly assigned employe, performed emergency work and was properly paid the rate of the position on which he worked. In addition, he was allowed a "call" as a matter of equity even though every reasonable effort was made to contact. Claimant so that he would not report for the second shift.
With reference to the contention that the claim be barred because it was amended substantially, we find that the alleged violation that Mr. Gammons was improperly compensated as set forth in Part 1 of the claim is the same as that contended on the property. The claim in Part 2 for compensation for eight hours pro rata rate for reporting and not being used on his regular shift assignment is also the same money claim made on the property. The claim in Part 3, however, is an amendment, an additional monetary demand, and therefore is barred by Article V of the National Agreement. Parts 1 and 2 of the claim are properly before this Board.
In resolving this dispute it is necessary to examine Carrier's interpretation of Article 8. It reads as follows:
Carrier interprets the purpose of the parenthetical clause in this Article only to distinguish between how a regularly assigned employe and a regularly assigned relief employe may be used. It reads this Article to mean that a regularly assigned operator may only be required to perform relief work in case's of emergency and that he be compensated at the rate of the position he is relieving or at the rate of his regular position, whichever is greater. The parenthetical clause, it argues, is to exempt the, regularly assigned relief employe from this restriction so that Carrier may assign him to do relief service whether or not an emergency exists. We find, however, that the parenthetical clause in Article 8 eliminates the application of this rule to Mr. Gammons because it specifically exempts regularly assigned relief employes. Since Mr. Gammons was diverted from his regular assignment, Article 6, Section 4 is applicable, for it guarantees one day's pay within each twenty-four hours if the employe is ready for service and not used.
For the foregoing reasons we hold that the Agreement was violated and Mr. Gammons is awarded compensation in the amount of eight hours' pay at pro rata rate less compensation o8 three hours which he already received.
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;