THIRD DIVISION
(Supplemental)
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC
RAILROAD COMPANY
OPINION OF BOARD: Claimant is the regularly assigned occupant of Yard Clerk Position No. 77950, which is a six day position, the relief day falling on a Sunday. The Claim is based on the fact that "crew calling" was done on each of the Sundays specified in the claim by a clerk employed at Harlowton, some sixty-three miles from Lewistown, where Claimant is employed. He submits that such "crew calling" should have been performed by him, but since it was not, compensation should be forth-coming equivalent to five hours and twenty minutes (5'20") at the rate of time and a half for each of the four Sundays involved.
In its ex parte submission to this Board, the Organization calls into focus the following rules as being particularly germane to the issue presented, and upon the terms of which a violation is alleged.
The Petitioner propounds the argument that Rules 32(f) establishes who shall be used to perform overtime work identified with a specific position when such work is required before or after assigned hours, that Rule 32(g) establishes who shall perform overtime work which cannot be identified with a specific position or when additional help is required, and that Rule 34(d) provides the method of payment to employes called to perform work on holidays and Sundays. Petitioner also argues that it has been the practice on this property throughout the years when additional help has been required for extra or temporary work that such work will be assigned to available employes at the location where the work occurs.
From a review of the evidence reflecting the discussions on the property between the parties, an oblique reference is made to Rule 28, the Unassignd Day Rule, which reads as follows:
The Carrier answers by stating that the work of "crew calling" is not exclusively reserved to, or performed by the employe Claimant at Lewistown, or by employe clerks at any other point on the System, but is work performed not only by clerks but by others outside the Scope of the Clerical Agreement. Carrier further states categorically, and this has not been controverted, that the Clerk at Harlowton who actually did the "crew calling," is located within the same seniority district and is on the same seniority Roster as the Claimant.
Affidavits have been submitted on behalf of the Petitioner, by various employes with considerable years of service attesting to the fact that the work involved has been performed exclusively by clerks at Lewistown. There is no attempt to show by these affidavits that this is a system wide practice. In examining these affidavits, Carrier has to some degree discredited them in their rebuttal statement and argues that since they appear to be "stereotyped and lacking in originality," they should be given little or no credence. Carrier relies on several awards, all of which were based on an alleged violation of the Scope Rule for work performed by employes other than clerical. Petitioner is not basing this claim on the Scope Rule; on the contrary, they are not, according to the evidence before us, alleging such a violation, but are claiming "that work which is located 63 miles apart must be performed by the clerical forces which are maintained at each location, and those clerical forces at Lewistown have a prior right to perform the work which is correlative to their respective positions as provided in the Rules Agreement."
The awards upon which Carrier relies, are distinguishable from the instant case in that the Scope Rule was involved and the work was performed by employes of other crafts. Here we do not have a Scope Rule case. The work was performed by a clerk, but not by the clerk at the location generating such work. The injection of the Scope Rule and evidence of exclusivity by both parties is immaterial and irrelevant to the issue at stake as are Rules 32(6) and (g). Neither of these rules are applicable. Rule 28, the unassigned day Rule is applicable, and since the work involved, was work on an unassigned day at Lewistown, in the absence of an available extra or unassigned employe not having 40 hours of work that week. it should have been given to the Claimant and compensation awarded in accordance with Rule 34, the Call Rule. We will sustain the claim.
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;