(Brotherhood of Railway, Airline & Steamship Clerks, ( Freight Handlers, Express & Station Employee PARTIES TO DISPUTE: (Missouri Pacific Railroad Company

1, The Carrier violated the rules of the Clerks' Agreement at MK Yards when, beginning July 29, 1968, it required and/or permitted employee not covered by the Clerics' Agreement to perform routine yard clerical work that is covered by the Clerks' Agreement, on an overtime basis.

 2. Carrier shall now be required to compensate Clerk R. L. Austin, at pro-rata rate of pay, for all overtime worked by employee not covered by the Clerks' Agreement, performing routine yard clerical work as follows:


























        DATE OVERTIME WORKED

        August 24, 1968 2 hours 30 minutes

        August 26, 1968 2 hours

        August 27, 1968 2 hours

        August 28, 1968 1 hour

        August 29, 1968 1 hour 30 minutes

        August 30, 1968 1 hour 30 minutes

        September 1, 1968 3 hours

        September 2, 1968 1 hour

        September 3, 1968 1 hour 30 minutes

        September 4, 1968 3 hours

        September 5, 1968 1 hour 30 minutes

        September 6, 1968 3 hours

        September 8, 1968 3 hours

        September 9, 1968 3 hours

        September 10, 1968 3 hours

        September 11, 1968 2 hours 30 minutes

        September 12, 1968 3 hours

        September 16, 1968 1 hour

        September 17, 1968 1 hour

        September 18, 1968 1 hour 30 minutes

        September 19, 1968 2 hours

        September 22, 1968 1 hour 30 minutes

        September 23, 1968 30 minutes

        September 24, 1968 2 hours

        September 25, 1968 1 hour 30 minutes

        September 26, 1968 1 hour 30 minutes

        September 27, 1968 1 hour

        September 29, 1968 2 hours

        September 30, 1968 1 hour 30 minutes


OPINION OF BOARD: This dispute arises under Agreement between the parties
 effective September 1, 1949, Third party notice has been
 given to the Transportation-Communication Division of the Brotherhood of Railway,
 Airline and Steamship Clerks; however, the T-C Division has not filed a sub
 mission.

 When this dispute arose the Agent-Telegrapher and the General Clerk (claimant herein) were the only employees at Carrier's MK Yard, near Houston, Texas. With Saturday and Sunday rest days, their regularly assigned hours were respectively 8 am to 5 pm and 11 pm to 8 am. Normally the agent's daily duties consisted of about four (4) hours of communication work and about four (4) hours of station clerical work.
                    Award Number 19651 Page 3

                    Docket Number CL-18857


On July 29, 1968 and subsequently the agent performed clerical work on an overtime basis continuous with the end of his assigned hours at 5 pm. This work consisted of checking yards and tracks, preparing switch list of such tracks for switching purposes, and preparing outbound train list. It is alleged by Petitioner that this work was work assigned to the claimant clerk during his regular assigned working hours.

 It is not disputed that the Agreement permitted the agent to perform clerical work during his regularly assigned hours. The dispute is raised by Petitioner's contention that the regularly assigned General Clerk had a preferential right to the cl basis after 5 pm.

 The Carrier's position is that the dispute is governed by paragraph (b) (1) of the Memorandum of Agreement effective November 1, 1940, and that, thereunder, the agent, being the only employee on duty, was entitled to perform any amount of clerical work, including clerical work on an overtime basis. Carrier also states that performed by the agent during his regular assignment, Carrier was obligated to use the agent for the authorized overtime continuous with the ending of his regular tour of duty at
Petitioner's position is that Rules 1, 2, and 45, and the 1940 Memorandum Agreement, when read t work to his regularly assigned tour of duty and that, as between an available clerk and the agent, the clerk had a preferential right to clerical work performed on an overtime basis.

 The pertinent Agreement provisions are Rule 45(b) and paragraphs (a) and (b) of the 1940 Memorandum Agreement which read as follows:

        "RULE 45. AUTHORIZING OVERTIME


        :; ~ ,; ~ * ~ ,r


        (b) In working overtime before or after assigned hours, employes regularly assigned to class of work for which overtime is necessary shall be given preference,"


        "M12fORANDLM AGREEMENT


        (a) It is recognized and agreed that all of the work referred to in Rule 1 of the Agreement dated November 1, 1940, between the Carrier and the Brotherhood belongs to and will be assigned to employes holding seniority rights and working under the Clerk's Agreement, except as provided below:

Award Number 19651 Page 4
 ' Docket Number CL-18857

              "(b) Due to the peculiar conditions existing in station service it is agreed that:


                    (1) Where an Agent covered by an agreement other than the Clerks' Agreement is the only employs on duty not covered by the Clerks' Agreement the Carrier may assign such Agent any work covered by the Clerks' Agreement.


                    (2) At stations where two employes not covered by the Clerks' Agreement are on duty at the same time and the work covered by the Clerks' Agreement is less than five hours the Carrier may assign such work to those two positions.


                    (3) In all instances other than those set out in Items (1) and (2) above, it is agreed that where the work covered by the Clerks' Agreement is less than three hours on any shift of eight hours the Carrier may assign such work to station employes not covered by the Clerks' Agreement."


        We find on the whole record that the disputed overtime clerical work was work assigned to General Clerk Austin during his regular assigned working hours. It is of no consequence that the work may have been of the "same nature and kind" performed by the agent during his regular tour. Such work was expressly authorized by the Agreement provisions and there is no dispute concerning the agent's right to perform clerical work during his regular tour. Further, from our study of the pertinent Awards and applicable Agreement provisions, we conclude that the claimant had a right of preference to the disputed overtime clerical work under Rule 45(b) of the Agreement.


        In Awards 3360 (Tiptop) and 3761 (Wenke) this Board dealt with this same Memorandum of Agreement, effective November 1, 1940, and a clerks' preference rule which covered both overtime and extra time work on Sundays and holidays. In each of these Awards this Board rejected Carrier's reasons for permitting clerical work to be performed on Sundays and/or holidays by an employee not covered by the Clerks' Agreement. In Award 3360 we stated that:


              "This Board has repeatedly held that work covered by agreements cannot be removed from the scope and operation of the agreements arbitrarily. We have consistently held that work contemplated by the agreements, Rule 1 and 2, and the Memorandum Agreement, moat be assigned to employes within the agreements, and for whose benefit the agreements were made, and this applies to Sunday, holiday and overtime work as well as regular week day work. See Awards Nos.

              2071, 2549, 3191 and 3192.See Also Rule 45(b).


. .

 _. `: , .:.
                    Award Number 19651 Page 5

                    Docket Number CL-18857


        "Stephens had only the right to perform on Sunday and holidays the same work he performed on week days. He had no right to perform on Sundays and holidays the work that Mitchell, the Military Transportation Clerk, performed on week


In Award 3761 we again ruled that Carrier had violated a preference rule by actions which it contended were justified by the exception in the paragraph (b) (2) provisio application of the paragraph (b) (2) provision, we pointed out that:

        "Carrier seeks to justify its action by provision (b) 2 of their effective Memorandum Agreement. This provides as follows:


        'At stations where two employee not covered by the Clerks' Agreement are on duty at the same time and the work covered by the Clerks' Agreement is less than five hours the Carrier may assign such work to those two positions,'


        This provision has application only when the conditions referred to regularly exist. It does not such as here, where the work is regularly done on week days by employee under the agreement. If, under the latter situation, part of the same class of work exists on Sundays it moat be assigned to and performed by employee entitled to it thereunder. This provision does not permit the Carrier to do otherwise."


Also see Award 17844 (Devine) wherein this Board rejected a contention by Carrier which was similar to Carrier's contention herein concerning paragraph (b) (1) of the Memorandum of Agreement effective November 1, 1940,

        These Awards make it clear that the paragraph (b) exceptions of the

Memorandum Agreement apply only where the requisite circumstances regularly exist
 and that the exceptions do not apply to a situation where, as in the instant dis
 pute, a class of work, which is regularly assigned to employees covered by the
 Clerks' Agreement, needs to be performed on an overtime basis. And while the
 Awards dealt with clerical work performed on Sundays and/or holidays by non-clerical
 employees, as compared with overtime work in the instant dispute, the under
 lying principle of the Awards has equal application here. Thus, while paragraph (b)
 (1) permitted the agent herein to perform clerical work during his regular tour, the
 question of clerical overtime work is controlled by Rule 45 (b),and not by paragraph
 (b) (1) of the Memorandum Agreement.

 Moreover, the structure and text of the Memorandum of Agreement make it clear that the paragraph (b) exceptions must be carefully confined to certain, qualifying circumstances and that the exceptions cease to apply when the qualifying circumstances cease to obtain. The exceptions in paragraphs (b) (2) and (b) (3) are structured so as to become automatically inapplicable when the subject clerical work reaches the number of hours specified in the exceptions. The structure of
                    Award Number 19651 Page 6

                    Docket Number CL-18857


paragraph (b) (1) is slightly different in that it contains no express prohibition against cl the point at which the exception ceases to apply is prescribed by Rule 45 (b) which becomes the controlling provision, if a clerk is available, as soon as clerical overtime comes into existence under paragraph (b) (1). Furthermore, and contrary to Carrier's position, it is not significant that the agent performed the overtime clerical work continuous with the ending of his regular assignment. Rule 45 (b) covers overtime "before or after assigned hours" and the record contains no showing of a been performed by the claimant General Clerk.
We note in conclusion that, in the settlement of Award 2256, the parties themselves reached an understanding on the property which is in conformity with our rulings herein. In a January 1, 1948 letter to Mr. J. L. Dyer, Southwestern Representative, Brotherhood of Railway Clerks, the Carrier's Chief Personnel Officer, Mr. M. T. Short stated the following:
          "N0. 14 - ROBSTOWN (AWARD 2256)


        We will advertise General Clerk's position, rate $10,84 per day, on the basis of 365 days per year. You advised that there would be no objection to Telegrapher-Clerk No. 3 selling tickets and also to make Train No, 61's waybills, if the latter is necessary during his tour of duty." (Emphasis supplied)


        For the foregoing reasons we shall sustain the claim.


        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employee 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
:r ..l
                    Award Number 19651 Page 7

                    Docket Number CL-18857


        That the Agreement was violated.


                      A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 23rd day of March 1973.

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