BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
(a) Carrier violated the provisions of the Clerks' Agreement when on June 10, 1968 it required Train Desk and Crew Clerk No. 4, Mr. Bevil Hayes to suspend work on his regular assignment in order to perform the work of General Clerk in billing cars and performing janitorial duties intermittently throughout his shift, 11:00 P. M. June 10th to 7:00 A. M. June 11th, 1968.
(b) Carrier further violated the provisions of the Clerks' Agreement on June 10, 1968 when it required Delbert Hardy, occupying the position of Train and Crew Clerk No. 3 to vacate his assignment in order to perform the janitorial duties assigned to the General Clerk intermittently during his tour of duty 11:00 P. M. June 10th to 7:00 A. M. June 11th, 1968.
(c) Mr. Bevil Hayes shall now be compensated at the rate of time and one-half for eight hours on June 10, 1968 in performing the duties of General Clerk as referred to in Claim (a) above in lieu of eight hours at the straight time rate he was allowed for service on that date.
consolidation. On April 19, 1967, Mr. R. R. Larson, the incumbent of the position of Train Desk Crew Clerk Position No. 6, terminated as a Clerk and entered service as a Locomotive Engineer. The position of Train Desk Crew Clerk No. 6 was, therefore, discontinued, reducing the total number of Train Desk Crew Clerks to six, or two per each shift.
On June 5, 1968, Mr. R. E. Summers, the incumbent of the position of General Clerk, submitted his resignation vacating the position of General Clerk and, therefore, the position of General Clerk was discontinued. With the termination of Mr. Larson and Mr. Summers as Clerks, the reduction of two positions contemplated by the consolidation was complete.
By notice dated June 3, 1968 (attached as Carrier's Exhibit B) billing work and janitors' work was assigned to the positions of Train Desk Crew Clerks by Trainmaster M. C. McManus. Both billing work and janitor work has been performed in the Portola yard office by Train Desk Crew Clerks since that date.
The instant claims were submitted by Messrs. D. Hardy and H. Hayes (Carrier's Exhibits C and D) and denied by the timekeeper in letters dated .June 14, 1969 (Carrier's Exhibits E and F). The claims were thereafter combined for further handling. Attached as Carrier's Exhibits G, H, I, J, K and L, are copies of the correspondence in connection with the progression of the instant claim on the property.
Copy of the controlling agreement between Carrier and the Brotherhood of Railway Clerks, effective December 16, 1943, revised September 16, 1965, is on file with the Third Division, National Railroad Adjustment Board, and is hereby incorporated herein by reference.
"If a qualified employe is not available pursuant to the provisions of Rule 31(f), the Carrier may instruct an employe to vacate his regular assignment and work a portion or all of a short vacancy on the same shift for which service he will be paid for actual time worked on the vacancy at the time and one-half rate of the higher rate of the two positions involved and at the straight time rate for actual time worked on his own assignment; provided, however, that if he works four (4) hours or more on the vacancy, he shall be paid at the rate of time and one-half for all time worked on both positions."
OPINION OF BOARD: In our consideration of this case we are confined to the record made on the property. The parties are barred from raising issues for the first time before this Board; nor may they introduce evidence in addition to that adduced on the property.
Carrier admits that Claimants were assigned work as alleged in the Claim.
In Clerks' appeal to Carrier's Manager of Personnel, the chief operating officer of the Carrier designated to handle such disputes, Clerks narrowed the issue to:
Clerks adduced no evidence of "actual time worked" in the performance of the duties which it alleges were wrongfully assigned to Claimants. Absent such evidence Clerks failed to establish proof of an indispensable fact requisite to application of Rule 20 (i). We, therefore, will dismiss the Claim for failure of proof. Consequently, we do not reach the question as to whether the work involved was wrongfully assigned to Claimants.
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