BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS & STATION
EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD
COMPANY
Position 37580 during the period this position was on bulletin account the retirement of the regularly assigned occupant thereof.
Effective October 1, 1967 the United States Government cancelled its contract with this Carrier to handle mail on its passenger trains, therefore, the need for this unassigned trucker service no longer existed. In fact, with trains 9 and 10 no longer carrying mail, the clerical force at Iron Mountain was reduced and/or rearranged, i.e., the Relief Position described in the first paragraph of the CARRIER`S STATEMENT OF FACTS was abolished effective October 2, 1967, and the assigned hours and rest days of Position 37580 were changed so that the services of the assigned occupant thereof could more adequately provide assistance in the performance of the clerical duties required by the agent in the routine performance of station duties.
Since September 30, 1967 Claimant Hoskings, due to his complete lack of clerical experience and for health reasons, has performed no other service for this Carrier.
Attached hereto as Carrier's Exhibit "A" is a copy of a letter dated January 31, 1968 from Mr. S. W. Amour, Vice President-Labor Relations to Mr. H. C. Hopper, General Chairman.
OPINION OF BOARD: This claim was submitted by the Organization on September 15, 1967, rretroactive for a period of 60 days, that is, to July 17, 1967. Sometime prior to July 17, 1967 the Carrier employed Claimant for the specific purpose of assisting a regularly assigned clerical employe in loading, unloading, positioning and/or moving platform trucks about the station platform, all of which was incidental to unloading of mail, newspapers, etc., from Train No. 9. Carrier's statement of the restrictive nature of Claimant's duties has not been categorically denied by Petitioner in view of which it does not appear to have been improper or in violation of the Agreement for Carrier to have classified and compensated Claimant as a Trucker. This conclusion, of necessity, is confined to this particular dispute.
As to item 1 of the Statement of Claim, we find that Claimant's services were not required on a daily or continuing basis and Carrier was not required to bulletin the position. As an extra or unassigned employe Claimant was only utilized on days when the volume of mail was such as to require his services. Therefore, he was only entitled to compensation on such days as service was actually performed. However, the record indicates that Carrier only paid Claimant for actual time worked with a minimum of four hours. Under Rule 26, the Basic Day Rule, Claimant was properly entitled to eight hours for days on which service was performed. He is, therefore, to be paid for the difference between what he was allowed and what he would have received had he been paid for eight hours each day service was performed in accord with Rule 26. Petitioner has submitted a record of the dates and hours worked by Claimant, which has not been refuted by Carrier and must be regarded as being correct. In addition to being entitled to eight hours' compensation instead of four hours on days on which service was performed, Claimant is also entitled to the time and one-half rate for all time worked in excess of eight hours on any date in accord with the provisions of Rule 32. For.any such instances, Claimant is to be made whole by allowing him the difference between what he had been paid and what he would have received for such hours at the time and one-half rate. Petitioner's contention that Claimant's rest days could only be Saturday and Sunday must necessarily be rejected. The record shows without contradiction that extra and un-
assigned employes on this Carrier have a workweek starting with Monday. However, Claimant is properly entitled to time and one-half rate on any day or days that he performed service in excess of five days in any one workweek. Here again he is to be compensated for the difference between what he had been paid and what he would have received had he been paid at the time and one-half rate on such days.
Item 2 of the Statement of Claim alleges the Agreement was violated when Carrier failed to grant Claimant seniority and place his name on the seniority roster for the district in which employed. We agree.
Item 3 of the Claim requests this Board to require the Carrier to bulletin a position of Mail Handler at Iron Mountain, Michigan, with a rate of pay to be established by negotiation and agreement. We have many times held that it is beyond the authority of this Board to order the Carrier to establish a position and that the method whereby an Agreement violation is corrected is for the Carrier to decide. These holdings are affirmed and this portion of the claim must be dismissed.
Item 4 of the Claim is disposed of in accord with the discussion under Item 1 of the Claim, except that if Claimant performed service on a Holiday for which he has been compensated at straight time rate he is to be allowed the difference between the straight time rate and the time and one-half rate for any service performed on a Holiday.
As to Item 5 the record of days worked as submitted by Petitioner shows that Claimant rendered compensated service on 110 days in the year 1966. Since we have found that it was proper for Carrier to use Claimant only when his services were required it is apparent that he did not perform sufficient service in 1966 to qualify for a vacation in 1967, and this portion of the Claim must be denied.
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
Items 1 and 4 of the Claim are sustained to the extent indicated in the Opinion and Findings; Item 2 is sustained; Item 3 is dismissed; Item 5 is denied.