CARRIER'S STATEMENT OF FACTS: There is an agreement between the parties identified as "Telegraphers' Schedule, effective December 1, 1938," a copy of which is on file with the Third Division and is hereby referred to and made a part of this dispute.

Up to the time of being presented for consideration by this Board, the two claims were handled as separate claims, they having originated_at points on territories of different General Managers and were progressed through different channels of appeal. Therefore, a separate Statement of Facts is necessary as to each station.

The facts involved at Coleman, Texas, referred to in Item (a) of the Employes' claim, are stated first as follows:

Mr. D. B. Beall was regularly assigned as telegrapher-clerk 6:15 A. M. to 3:15 P. M., with one hour for lunch, on week days; and 6:15 A. M. to 8:15 A. M. on Sundays; rate 69¢ per hour.

On Sunday, July 13, 1941, a helper engine was operated between Brownwood and Coleman, Texas, to assist two freight trains. The helper engine arrived at Coleman at 4:50 A. M., July 13, 1941, and required train orders. Telegrapher-clerk Beall was accordingly called on duty at 5:15 A. M. to handle these orders and was thereafter continued on duty until 9:15 A. M. in order to protect his regular Sunday duties and furnish the dispatcher with information concerning a freight extra departing from Coleman at 8:55 A. M. For the service performed 5:15 A. M. to 9:15 A. M. on July 13, 1941, Telegrapher-clerk Beall was paid at his regular hourly rate of 69¢ as follows:

The instant claim requests the following payment for the service performed:

5 hours

The facts involved at Orlando, Oklahoma, referred to in Item (b) of the Employes' claim, are as follows:

Mrs. Willie Hardy was regularly assigned as Agent-telegrapher 7:00 A. M. to 4:00 P. M. daily, except Sundays and holidays, with a meal period of one hour, rate 71¢ per hour.

Mrs. Hardy was called for duty on July 4, 1941, a holiday, at 6:40 A. M. and was required to work until 10:00 A. M. Payment for the 3 hours 20 minutes service performed by Mrs. Hardy was made on the following basis at her regular hourly rate of 71¢ per hour:

The instant claim requests the following payment for the service performed:

The controlling rule of the current Telegraphers' Schedule is Article III (e-3), reading:

"(e-3) When notified or called to work on Sundays and the above specified holidays, a less number of hours than constitute a day's work within the limits of the regular week-day assignment, employes shall be paid a minimum allowance of two (2) hours at overtime rate for two (2) hours' work or less, and at the regular hourly rate after the second hour of each tour of duty. Time worked before or after the limits of the regular week-day assignment shall be paid for in accordance with overtime and call rules."

HISTORY OF THE RULE

The present rule quoted above is an adaption of the following decision of the Director General of Railroads in his Interpretation No. 3 to Supplement No. 13 to General Order No. 27, dated April 25, 1919:

"When notified or called to work, on Sundays and or the above specified holidays, a less number of hours than constitute a day's work within the limits of the regular week-day assignment, employes shall be paid a minimum allowance of two hours at overtime rate for two hours' work or less, and at the pro rata hourly rate after the second hour of each tour of duty. Time worked before or after the limits of the regular week-day assignment shall be paid for in accordance with sections (b) and (c), Article V of Supplement No. 13 to General Order No. 27.”

which was, together with certain other requirements contained in the various supplements and interpretations thereof to General Order No. 27, incorporated into the Telegraphers' Schedules effective October 11, 1918 on the Gulf, Colorado and Santa Fe, on which territory Coleman is located, and November 1, 1919 on the Atchison, Topeka and Santa Fe Railway-Eastern and Western Lines, on the Eastern Lines of which Orlando is located.

In negotiations undertaken by the parties following issuance of Decision No. 119 of the United States Railroad Labor Board, they were unable to agree on a rule governing pay for time worked on Sundays and holidays, and so certified to that Board. The Labor Board promulgated the following Sunday and holiday rule, being the third paragraph of Rule No. 8 of Decision

No. 757, effective March 16, 1922, and the parties incorporated it into an agreement effective that date and identified as "Rules and Rates of Pay for Telegraphers," designating it as Article III-(g):

"When notified or called to work on Sundays and the above specified holidays a less number of hours than constitute a day's work within the limits of the regular week-day assignment, employes shall be paid a minimum allowance of two hours at overtime rate for two hours' work or less, and at the regular hourly rate after the second hour of each tour of duty. Time worked before or after the limits of the regular week-day assignment shall be paid for in accordance with overtime and call rules."

That rule was not changed in any respect when it was included as a part of Article III of the revised Telegraphers' Schedule, effective February 5, 1924, copy of which is on file with the Third Division, and as Article III (e-3) of the current Telegraphers' Schedule, effective December 1, 1938.

The decision of the Director General of Railroads in his Interpretation No. 3 to Supplement No. 13 to General Order No. 27, in addition to establishing the rule described hereinabove, set forth various examples governing the payment of telegraph employes under that rule. Included therein was example (f) as follows:

"Assumed starting time regular assigned week-day hours, 8 A. M., excluding meal hour.

"Notified or called:

(f) 7 A. M. to 9 A. M., 2 hours.

Computed

Call, minimum allowance,

2 hours, at 75¢.....

$1.50"

NOTE: The 75¢ rate shown was the time and one-half rate of the 50¢ hourly rate of the position.

Shown as Carrier's Exhibit "A" are copies of correspondence passing between General Chairman Elliott of The Order of Railroad Telegraphers and Mr. E. K. Metzdorf of the Carrier in 1932, which reflects the understanding of the present General Chairman, while Chairman of the Relay Division, regarding the application of the third paragraph of Article III (e), the Sunday and holiday rule, of the Telegraphers' Schedule, effective February 5, 1924, which rule was identical to Article III (e-3) of the current Telegraphers' Schedule, effective December 1, 1938, here under consideration, and applies to Road Division and to Relay Division employes.

During the 1938 negotiations which resulted in the Telegraphers' Schedule, effective December 1, 1938, there was an extensive discussion of the present section (e-3) of Article III (third paragraph of Article III (e) of the previous Telegraphers' Schedule, effective February 5, 1924), which included the citation of numerous examples by the Carrier's committee outlining the previous agreed application of the rule, among which were the following examples:

"Regular week-day assigned hours 7:00 A. M. to 3:00 P. M., excluding meal periods

General Chairman Elliott and his committee were in agreement that the payments outlined above were a correct application of Article III (e-3), the Sunday and holiday rule.

Shown as Carrier's Exhibit "B" is statement of the payments made to telegraph employes notified or called to work a less number of hours on Sundays and holidays than constitute their regular week-day assignment, as in the instant case, on the Gulf, Colorado and Santa Fe Railway, on which territory the station of Coleman, Texas, involved in the instant dispute, is located. Similar payments have been made for such Sunday and holiday service on other portions of the Atchison, Topeka and Santa Fe Railway System.

POSITION OF CARRIER: In their handling of this dispute on the property, the Employes have cited Article III (e-3) of the current agreement and Third Division Award 813, Docket TE-837, as authority for their claim.

An examination of the history of Article III (e-3), as set forth in the Carrier's Statement of Facts, plainly shows that this rule has remained unchanged since it was first promulgated by the United States Railroad Labor Board in its Decision No. 757, reaffirmed by its Decision No. 2025, and incorporated into the Telegraphers' Schedule, effective March 16, 1922. Further, the present rule is, in effect, the identical rule established by the Director General of Railroads in his Interpretation No. 3 to Supplement No. 13 to General Order No. 27, which was included in the Telegraphers' Schedule, effective October 11, 1918, on the Gulf, Colorado and Santa Fe Railway and November 1, 1919 on the Atchison, Topeka and Santa Fe Railway— Eastern and Western Lines.

The Carrier maintains that the payments allowed to the telegrapher-clerk at Coleman, Texas on July 13, 1941, and to the agent-telegrapher at Orlando, Oklahoma on July 4, 1941, a holiday, were in strict accord with the requirements of Article III (e-3) of the Telegraphers' Schedule and the past interpretations of that rule on this property as established by (1) Interpretation No. 3 to Supplement No. 13 to General Order No. 27, and (2) the requested and agreed understanding of the present General Chairman of The Order of Railroad Telegraphers in 1932.

In its Exhibit "B" the Carrier has shown the past application of Article III (e-3) to the payment of telegraph employes on the Gulf, Colorado and Santa Fe Railway portion of this Carrier's property when notified or called to perform work, as in the instant case, on Sundays and holidays. The application of the rule on all System territories has been identical to that followed on the Gulf, Colorado and Santa Fe territory. Carrier's Exhibit "B" is conclusive evidence that the payments made to the telegraph employes at Coleman, Texas and Orlando, Oklahoma on July 13 and July 4, 1941, respectively, were in accordance with the past application of the governing rule.

The instant claim at Coleman, Texas on July 13, 1941 and at Orlando, Oklahoma on July 4, 1941 are the first protests that have been received from the Telegraphers' organization against the Carrier's application of Article III (e-3) of the current Telegraphers' Schedule, effective December 1, 1938.

The payments allowed in the instances covered by this dispute were in accordance with Example (f) contained in Interpretation No. 3 to Supplement No. 13 to General Order No. 27, issued by the Director General of Railroads, reading:

"Assumed starting time regular assigned week-day hours, 8 A. M., excluding meal hour.

"Notified or called:

(f) 7 A. M. to 9 A. M., 2 hours.

Computed

Call, minimum allowance,

2 hours, at 75¢.

..$1.50"

NOTE: The 75¢ rate shown was the time and one-half rate of the 50¢ hourly rate of the position.

The payments complained of were in complete accord with the application of the rule requested by General Chairman Elliott in 1932 while acting in the capacity of Chairman of the Carrier's "Relay Division" telegraph employes, as evidenced by the copies of correspondence contained in the Carrier's Exhibit "A". A misinterpretation of the rule as applied in some relay offices in the latter part of 1931 and the early part of 1932, had produced payments in excess of what the rule actually called for and had resulted in certain Relay Division employes being denied Sunday and holiday work in order that the Carrier might escape the excessive penalties resulting from the misapplication of the rule. Mr. Elliott's memorandum of January 16, 1932 (Carrier's Exhibit "A") protested the unequal division of Sunday and holiday work and directed the Management's attention to his understanding of the requirements of the rule, which, if adopted, would eliminate the excessive penalties responsible for the Carrier's refusal to use certain telegraph employes on Sunday and holiday work. Particular attention is directed to that part of Mr. Elliott's memorandum of January 16, 1932, reading:

"It is my understanding of the 6am man called for 9am would be paid time and half 9am to 11am, prorata thereafter so long as within his week-day assignment. The 1030am man called for 9am would be paid two hours at time and half 9am to 11am and prorata thereafter so long as within his week-day assignment." (Emphasis supplied.)

Mr. E. K. Metzdorf, Assistant Superintendent of Telegraph for the Carrier, acknowledged the misapplication of the rule in his letter of April 21, 1932 (Carrier's Exhibit "A"), advising Mr. Elliott of the Carrier's agreement with his views with respect to the intent and application of the rule. Attention is also directed to Mr. Elliott's telegram dated April 22, 1932 (Carrier's Exhibit "A"), reading:

"The most recent file on this originated account Printer-operators Amarillo not being permitted to alternate Sundays and Holidays account presumably a double penalty applying on a call ahead of the regular starting time and working less than 8 hours. Am telling those involved that a double penalty is not charged to the Company on such calls and am assuming you will advise Manager Hankison at Amarillo that no objections to alternating on Sundays and Holidays."

from which it will be noted that "a double penalty" was not to be charged against the Company when a telegraph employe was called ahead of his regular starting time and performed less than eight (8) hours' service on Sundays and holidays. Mr. Elliott, in his present capacity of General Chairman, now· seeks to repudiate that understanding and obtain the double penalties outlined below: