continuance of pro rata overtime for freight portions of the trip The standard so-called "two classes of road service rule" merely set up a method of compensation under conditions where two classes of service can be, and are, properly combined in consonance with other provisions of the contract as a whole. It was never intended as a permissive rule to grant the carrier the right to disregard all other rules in the schedule and thus destroy the incentive piecework mileage basis of compensation. There are hundreds of examples in the awards of this Division of the distinction between a method-of-compensation rule where properly applicable and a permissive rule. See Awards No. 9727, 11946, 13713. Attention is directed to: Award 1971 (E vs Soo) No referee In which as early as June 15, 1937, the Division, without the aid of a referee, found without merit the specific argument advanced by the carrier with respect to the application of the "two classes of road service rule" as last promulgated by the Supplements to General Order No. 27 and held: "The use of assigned crew in flanging snow service not necessary in the movement of their train, or work in connection therewith, is service performed in addition to their regular assignment and should be paid accordingly." (Emphasis ours.) Award 2424 (Ef vs D&RGW) No referee In which it was held: "The evidence of record shows that the service, described in the record, performed by Fireman King was not in connection with the train handled by the helper crew into Soldier Summit and, in fact, was under the direction of another train crew not at the time connected with the helper engine crew's assignment. In consideration of these facts the claim is held to be valid under Article 2 of Agreement between the parties." Award 7519 (E vs GN) Referee Thomas J. Mabry In which it was held: "Claimant Simpson was inducted into work train service, and Combination Service Rule 7 was improperly applied. Rule 7, relied upon by carrier, does not, under the circumstances of this case, authorize the combination of assigned through freight service with unassigned work train service. . . (Emphasis ours.) Award 9270 (F vs D&RGW) No referee In which the Division, without the aid of a referee, sustained solely under basic day rules "claim for a separate day's pay through freight class engine rate in addition to time allowed, account performing two different classes of service". Award 9301 (F vs D&RGW) No referee In which the Division, without the aid of a referee, sustained the claim of a pool freight crew called for a one-day work train assignment for an additional day separate and apart account inducted into freight service. Award 11294 (F vs GN) Referee Sidney St. F. Thaxter In which it was held: "Neither the Side and Lap Back Rule, Firemen's Schedule Rule 29(b), nor the Combined Service Rule, Firemen's Schedule Rule 3, is applicable here. The work which the claimants were called to perform was not a lap back as contemplated by the rule, nor was it that form of combination service which is covered by Rule 3. It was work outside of the particular assignment which they were called on to fill, and they were entitled to be paid for an extra day. The situation here before us is the same as was considered in Awards 7519 and 7521. There is involved the same Carrier, the same Rule, and the same general type of service. See also Awards 5671 and 7430." (Emphasis ours.) Award 11438 (F vs D&SL) Referee Grady Lewis In which the Division, in sustaining "claim for 100 miles, classified freight engine rate, in addition to time allowed, account required to perform two separate classes of service, when used in wrecking service at Tabernash", held: "By authority of a long list of awards of this Division, this claim is valid as being work outside the assignment which this crew was called to fill." Award 11570 (F vs SP-P) Referee John Thad Scott, Jr. In which it was held: Claim "The Combination Service Rule is not applicable here. "Request for checkback is definite and susceptible of deter- Award 11693 (E vs IGN) Referee Grady Lewis In which it was held: "This claimant, assigned to through freight service, may not be required to perform work train service while so assigned, since work train service is outside his assignment." (Emphasis ours.) Award 11694 (E vs IGN) Referee Grady Lewis In which it was held: "This claimant was assigned to work train service; that service may not be combined with through freight service." (Emphasis ours.) Award 11746 (F vs SP-P) No referee In which it was held: "The claim of C. Quintini for service performed on April 12, 1939, as fireman for Engineer A. Williams, claimant here, was sustained in Award No. 11570 with Findings as follows: ""The Combination Service Rule is not applicable here. Claimant was assigned to turnaround local freight service. He was required to also perform work train service, which was outside of the particular assignment he was called upon to fill. He began a new day when he left Merced in work train service.' "The Division holds to those Findings in this case, the facts, rules and circumstances in all respects being identical in both cases." (Emphasis ours.) Award 11862 (EF vs MP) Referee Wm. H. Spencer In which it was held in part: The Division has in many Awards, with and without referee, held that the Carrier cannot combine two separate classes of services on a continuous pay basis unless the controlling agreement provides for the combination. . . Award 12670 (C vs B&G) Referee Curtis W. Roll In which the Division, in sustaining claim for an additional day account required to pull some cars away from a wreck while enroute, held in part: Claimants rely upon Rule I, (Basic Day Rule) and Rule 14 (the bulletining rule). "It is clearly established that the services performed in connection with the wreck at Harker were outside of the claimants' regular assignment." Award 12719 (F vs SP-P) Referee Andrew Jackson In which the Division, in sustaining claim for an additional day account required to re-rail car, held in part: The Carrier contends, and allowed payment on the basis, that both classes of service i.e., wrecking and turnaround local. freight, being road service, may properly be combined on a continuous time basis under Article 12, Sec. 1. "The wrecking service was not specified in claimant's assignment, nor can it be claimed to be incidental thereto. . . .' Award 12926 (F vs NC&StL) Referee Sidney St. F. Thaxter In which it was held in part: "If there is one principle which this Division has settled, it is that a train crew assigned to a specific run as was the case here, are entitled to be paid for an extra day if called to perform services outside of the scope of their assignment . . . and certain contentions of the carrier are identical with those here even to being framed in identical language. . . . "It is urged that the facts there are different from those now before us. Of course, it is well nigh impossible to find two separate operations which are exactly the same. . . . "We have gone into this matter at this length because of the insistence with which these arguments, rejected by this Division a little more than a year ago, are pressed upon us a second time.” (Emphasis ours.) Award 12987 (T vs NYC-E) Referee Joseph M. Klamon In which it was held in part: "The evidence submitted by the Carrier members and the Labor members reviews the issue involved in this case very thoroughly. A considerable number of awards have been cited in support of the opposing contentions of the parties. Many previous awards of this Division with and without referees' aid, have held that regularly assigned service and unassigned work train service cannot be combined and paid for on the basis of one minimum day under the Combination of Service rule, but must be paid on the basis of a minimum day for the service performed on their regular assignment, and an additional minimum day for the unassigned work train service which was performed. In Award No. 12926, Docket No. 20592, rendered by this Division on August 10, 1949, Referee Sidney St. F. Thaxter said: 'If there is one principle which this Division has settled it is that a train crew assigned to a specific run, as was the case here, are entitled to be paid an extra day if called to perform service outside of the scope of their assignment.' "This case involved payment on the basis of a minimum day for service performed on their regular way freight assignment and an additional minimum day for unassigned work train service. In view of all of the evidence set forth in the Docket and in view of Awards 1841, 1971, 1989, 1990, 4141, 5041, 5671, 11570, 11573, 11694, 11746, 11904, and the Award of Judge Sidney St. F. Thaxter on August 10, 1949, Award 12926, it will be necessary to sustain the position of the petitioner. The merits of the case and the evidence in the record, as well as the awards hereinabove cited, support the claimant's position in spite of the awards cited by Carrier members in the record, apparently to the contrary." (Emphasis ours.) Award 13418 (CT vs GM&O) Referee Sidney St. F. Thaxter In which it was held: "The question here is whether the claimants who were regularly assigned in work train service are entitled to an extra day at through freight rates when required after their specific work train service had been completed at Waynesboro to move revenue freight from Waynesboro to Meridian, their home terminal. Their particular assignment had extended through two days and on the last day had run from 8:00 A. M. to 4:40 P. M. before they started on the movement of freight. They were paid continuous time at work train rates which included 3 hours and 40 minutes overtime for the last day until they were relieved from duty at Meridian. "The carrier relies on Article 10 which is the same in both the Conductors' and Trainmen's schedules except as to those to whom it applies. This as taken from the Conductors' schedule reads as follows: ""Road conductors performing more than one class of road service in a day or trip will be paid for the entire service at the highest rate applicable to any class of service performed. The overtime basis for the rate paid will apply for the entire trip.' But "The carrier says that here the claimants performed two classes of road service and were paid in accordance with the rule. this is an oversimplification of the problem; for to so interpret the rule would authorize the carrier to combine any two classes of road service so long as it paid a crew at the highest rate applicable to either. This clearly is not so. All that the rule does is to provide a method of payment when two classes of road service are properly combined in a trip. Whether they are properly combined depends on other factors. There may be a special rule authorizing it in a particular case, or it may be the practice on a carrier acquiesced in by employes under certain conditions. The failure to analyze carefully the facts of each particular case accounts for most of the apparent conflict in the awards. No general rule can be laid down which will solve every case. It is apparent that employes have recognized that two classes of road service have been properly combined when they have sought payment in accordance with the rule. Referee Spencer points this out in Award 11922 where he calls attention to the fact that this was the situation before this referee in Award 10748. "We can at least start out safely with this proposition—that a crew cannot ordinarily be required to perform work outside of their regular assignment. What this referee said on this point in Award 12926, I still adhere to. Article 25(e) of the current Conductors' schedule (same in Trainmen's agreement) is but a declaration of the common practice on this point. It says: 'Regularly assigned conductors will not be run out of their regular assignment, except in cases where chain gang (conductors or crew) are not available to move the business. "A glance at certain of the awards will show also that such is the accepted practice and that authority to deviate from it cannot be found in the so-called Combination of Service rule. "Awards 1971, 1989 and 1990, each decided without a referee, hold that crews are entitled to an extra day where used in work train service in addition to their regular assignments. "In Award 5041, Referee Mitchell held that a regularly assigned crew could not properly be used in work train service. "In Award 11570 on similar facts, Referee Scott said: "The Combination Service Rule is not applicable here. Claimant was assigned to turn around local freight service. He was required to also perform work train service, which was outside of the particular assignment he was then called upon to fill. He began a new day when he left Merced in work train service.' "In Award 11694 on similar facts, Referee Grady Lewis sustained the claim with the following comment: "This Division has held many times that the combination service rule is not applicable where employe is required to perform work outside of his assignment. ""This claimant was assigned to work train service; that service may not be combined with through freight service.' "See to the same effect Award 11746 decided without a referee, Awards 11904, 12719, 12987, 12989. "So much for certain of the awards which seem to this referee to support the claim here presented. There are some awards which are in conflict with them, particularly 9574, 10680 and 10766. . . .” (Emphasis ours.) Award 14103 (F vs SAL) Referee Harold M. Gilden In which it was held in part: "Here complaint is made against the combining of local freight and helper service in one assignment with payment on a continuous |