BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
EMPLOYES' STATEMENT OF FACTS: Immediately prior to July 1,
1968, the following positions were maintained at Jamestown, North Dakota:
The duties assigned to the position of Day Baggageman and Night
Baggageman extend over a period of seven days per week. These positions
were filled eight hours per day, seven days per week, prior to July 1, 1968.
The position of Night Baggageman is assigned to perform the work of handling mail and baggage to and from Trains Nos. 25 and 26, receiving and delivering baggage from and to patrons and preparing reports incident thereto and janitorial work.
Enclosed as Carrier's Exhibit A are copies of all correspondence concerning the handling of this claim on the property.
OPINION OF BOARD: Effective July 1, 1968 Carrier abolished the positions of Day Baggageman and Relief Baggageman. Claimant occupied the Night Baggageman position with hours from Midnight to 8:00 A. M. and with rest days on Saturday and Sunday. Since July 6, 1968, Claimant has been called each and every Saturday and Sunday to handle mail and baggage on Trains Nos. 25 and 26 and to perform janitorial work. This is the same type of work he performs on his regularly scheduled days Monday through Friday. Work on Saturday and Sunday was performed prior to July 6, 1965 by employes whose positions were abolished.
Employes contend that the Claimant is entitled to eight (8) hours' work or pay at time and one-half rate for each of the rest days when he was called and worked. Since he was paid two (2) hours at the time and onehalf rate, he is entitled to an additional six hours at the premium rate for each of the rest days when called and worked. In support thereof Employes cite Rules 28 (Day's Work), 29 (Work Week), 29(j) (Work On Unassigned Days), 31(b) and (c) (Overtime), 33(b) (Sunday and Holiday Work) and 35 (Notified and Called). Rules 29(j), 33 and 35 are particularly relevant. They read as follows:
(j) Work On Unassigned Days: Where work is required by the Railway Company to be performed on a day which is not part of any assignment, it may be performed by an available extra or unassigned employe who will otherwise not have forty hours of work that week; in all other cases by the regular employe."
Service rendered by an employe on his assigned rest day or days filing an assignment which is required to be worked or paid eight hours on such day will be paid for at time and one-half rate with a minimum of eight hours."
Except as provided in Rule 32, employes notified or called to perform work not continuous with, before, or after the regular
It is apparent from all of the evidence in the record that the Carrier relies on the Call Rule (Rule 35) as a subterfuge to evade the undisputed fact that the work of the Night Baggageman position is a regularly recurring seven (7) day position and not a five (5) day position. Work on Saturdays and Sundays is performed regularly and not occasionally. Rule 35, when read and applied with other rules of the Agreement, does not apply when work on rest days occurs regularly. In Award No. 14899 we said: "Carrier is not entitled to have work performed on a regularly recurring basis on the incumbent's rest days, because work accruing to that position continues to exist six days a week." The findings and conclusions reached in said Award No. 14899 were followed and affirmed in Award No. 15462. See also Award No. 8533.
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
CARRIER MEMBERS' DISSENT TO AWARD 18298,
DOCKET NO. CL-18528
This Award is erroneous for the reason that the rules of the agreement do not support the claim of the Employes. There is no restriction in the
contract to applying Rules 33(b) and 35 to regular calls on an employe's assigned rest days.
Prior to the adoption of the 40 Hour Week Agreement there was no valid showing in the record in the instant case by the employes that Carrier was prohibited from doing what it did in the instant case so there should be no prohibition now.
The Awards cited by the Referee, 14899, 15462 and 8533, involved agreement rules and practices different from those on the Carrier involved in this case, and should not have been followed.
Rule 33(b) of the applicable agreement clearly gave Carrier the contract right to use an employe who works a five day position on his rest days (unassigned days) and compensate him per the provisions of Rule 35 (Call Rule) and, further, Rule 33(b) makes no mention relative to whether the use of this employe on his rest days is on a regularly recurring or irregular basis, and we are of the opinion that the majority completely misinterpreted the appropriate contract rules in this case; therefore, this award is of no value relative to precedent .
The conclusion of the Referee that "Rule 35 when read and applied with other rules of the Agreement does not apply when work on rest days occurs regularly" is dictum.