Brotherhood of Railway, Airline and
 Steamship Clerks, Freight Handlers,
 PARTIES TO DISPUTEExpress and Station Employes








OPINION OF BOARD: H. Goeldner, claimant in this case, was regularly
 assigned to the relief clerk position at Winona,
 Minnesota. His scheduled work days were Saturday through Wednesday,
 with Thursday and Friday as rest days. He was scheduled to work the
 ticket clerk position 45910 on May 30 and July 4, 1977.

 On these two legal holidays, however, claimant's position was blanked. While claimant's position was blanked, the operator on duty on both days sold tickets.

 Claimant alleges that ticket sales are a part of his responsibility as relief clerk and that as to work the two holidays in question. Claimant subsequently filed a claim for eight (8) hours at time and one-half for May 30th and July 4th. Carrier denied the claim at all levels of the grievance procedure. The Organization has therefore pressed its claims to the Board for final resolution.

 The Organization alleges that by allowing the operator to sell tickets when claimant's position was blanked, Carrier violated the controlling agreement, specifical 40-hour Week Committee and Rule 29 - Work on Unassigned DM. Carrier refutes these allegations and argues that the first trick operator who sold tickets while claimant's position was blanked sold tickets on numerous occasions while claimant and others were working the clerk


position on a regular basis. Carrier argues that in order for the Organization to have a legitim claimant had an exclusive right to perform all ticket selling. Given the practice at this location, that exclusivity cannot be demonstrated. The first trick operator sells tickets on an as-needed basis at ail times, just as do the second and third trick operators.

 The Organization argues that it does not have to prove exclusivity in the work involved. It need been employed on the two holidays in question, selling tickets was a normal part of his regular duties.

 While presenting a rather clear and concise issue, the case is the most recent in an exceedingly long line of cases decided by this Board by many different referees on the same or similar issues: work on unassigned days.

 There has also been a long line of such cases on this property with this Organization. Over the years, this Board has been presented with many different arguments to support the respective positions of the parties. It has also reviewed these many cases with mater different referees in attendance. Not surprisingly, this Board has rendered decisions on the issue that may appear to be conflicting. These apparently conflicting opinions, how
        In those cases where the Board has split on a decision,


reasoned dissents were written and made a part of the official award. These situations have been few in number, when one considers the large number of cases and referees over the years that have been involved with the issue. While this Board has not been successful in maintaining a consistent line of decisions on every issue presented to it, it has been mindful of the need to project a quality of decision making and a degree of predictability on all issues to the parties.

 The success of arbitration as a dispute resolution forum in any industry is based on accepted principles of contract construction, intelligent interpretation of the rendered. If the parties have confidence in the system, it will work. Lack of confidence by either side will generally serve to frustrate the system and complicate the parties' day-to-day relationship.
                  Award Number 23031 Page 3

                  Docket Number CL-22925


The parties that use arbitration must also be able to predict what may happen to their case if it goes to arbitration. There must be some degree of consistency in decisions in order for this predictability to be present. This Board is mindful of the need for consistency and predictability and has diligently worked over the years to maintain it in the decisions it has rendered. In an effort to maintain a degree of consistency, the Board has developed and utilized many principles that are applied in every case. While the letter of some of our decisions may not appear to the uninitiated to be consistent with our previous decisions, the principles that we have used to arrive at these decisions are generally unanimously accepted by the members.

 In arriving at a decision in the instant case, the Board has thoroughly reviewed the many cases cited by the parties on both sides of the issue. The issues involved here are the same that have been involved in many other cases that have come before this Board: Does the Organization have the burden of provi Which of the employes involved is the regular employe, as contemplated by contract?

 The contract language in dispute in this case gives special status to the regular employe, the employe regularly assigned to a position.

 Rule 32, Overtime; Decision No. 2 and Rule 29 - Work on Unassigned Days all grant the regular employe the extra work, if it is required by Carrier.

 In the instant case, based on the facts presented in the record before us, it is difficult to conclude that claimant is not entitled to the work in question under all three of the cited rules. Claimant is the regular employe who normally would have been assigned to work the first trick on the day in question. Rule 32 grants overtime work on a holiday to the regularly assigned employe, if the holiday falls within the employe's work week. Claimant meets all of the requirements of Rule 32 essential to claim the work in question in this dispute.

        The point that must be disposed of, however, that could stand in

the way of a simple application to the case of Rule 32, as well as Rule 29
 and Decision No. 2 of the 40-hour Week Committee, is the issue of work
 which is not a part of any assignment, or, stated another way, the exclus
 ivity argument. The Organization presented a brief in this case that cited
 a long list of awards dating back twenty years that say that exclusivity
 is not an issue in unassigned day cases. The only issue is who is the
 regularly assigned employe?
                  Award Number 23031 Page 4

                  Docket Number CL-22925


Carrier has submitted previous awards in this instance that come down on the other side on the exclusivity issue. Suffice it to say, each of the awards presented contains a set of facts unique in itself. Frequently, the Hoard based its decision on the special facts contained in the record before it and not on the cases it had decided in the past. The instant case is no different.

 The instant case presents a situation wherein an operator who normally works side-by-side with a ticket clerk and who, on occasion, as needed, assists the ticket clerk, was employed on two holidays as an operator. He was assigned, however, the ticket selling duties of the clerk while the clerk's position was blanked. This is not a situation that has arisen in any of the cases previously decided by this Board. The record of this case clearly establishes (and both sides agree and have so stated in the record) that the first trick operator assisted the ticket clerk when needed. It is also unrefuted that the operator may not, for extended periods of time (numerous days), be required to perform any of the clerk's duties. It is clear from this record that the operator in question here helped out the ticket clerk on a less than regular basis. It is difficult to conclude from the facts of this case that the operator could be considered the regular employe in this situation or that ticket selling, which is the disputed work in this instance, could be construed as a regular part of the operator's assignment to the degree that it would be legitimate for him to assume these duties on a full-time basis on a day when a clerk was not present to work.

 The record does not indicate that the operator in question here performed ticket sales on any other basis than as an assist to the regular ticket clerk. He did not cover the work on rest days, on weekends, or on holidays, other than the two involved in this claim. In that regard, this case is distinguished from all others presented by Carrier in support of its position. In each of the cases supporting Carrier's position, the employe assigned the disputed work had done some or all of the work in question on a regular basis as a part of his assignment. In the instant case, the operator has only performed the work in question on a sporadic basis in order to help out or assist the ticket clerk. It is extra work for the operator, not a regular part of his duties. One would have to strain the rule of reason to conclude that selling tickets is a sufficient part of the first trick operator's assignment to support a ruling th ticket sales for a holiday while the ticket clerk, who normallyy would sell all tickets, was blanked on the holiday. This is especially difficult in view of the protection granted to regular employes in the rules cited above.
                  Award Number 23031 page 5

                  Docket Number CL-22925


As to the remedy requested by the Organization, we see no basis on which to support Carrier's accusation that to pay this claim would be in violation of the agreement. It is well settled that when an employe has been denied his contract rights, thereby losing income, a make-whole award is in order. He should be placed by a sustaining award in the same economic position that he would have been in had his rights not been violated. In the instant case, that is eight hours at time and a half for each holiday blanked.

        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 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

        That the Agreement was violated.


                      A W A R D


        Claim sustained.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:/ r //. &a

          cuti've Secretary


Dated at Chicago, Illinois, this 28th day of October 1980.