The Second Division consisted of the regular members and in
addition Referee George A. Cook when award was rendered.
SYSTEM FEDERATION NO. 100, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (MACHINISTS)
DISPUTE: CLAIM OF EMPLOYES: That Machinist Pearl McWilliams is entitled to be compensated in the amount of double time or for two additional hours at his applicable pro rata rate for the services which he rendered from 11 P. M., July 24, 1946, to 3 A. M., on July 25, 1946, under the current agreement.
EMPLOYES' STATEMENT OF FACTS: At Marion, Ohio, the carrier employed Pearl McWilliams, hereinafter referred to as the claimant, as a Machinist during the hours from 7 A. M. to 3 P. M. On July 24, 1946, this claimant worked his regular hours from 7 A. M. to 12 Noon, at which time he was assigned to ride Engine No. 2930 to Kent, Ohio, whereat he arrived at 6 P. M. The claimant there waited to deadhead back on the first available train from 6 P. M., to 11:30 P. M. He departed on Train No. 1, for Marion, Ohio; arriving theme at 3 A. M., on July 25, 1946.
This claimant was on duty from 7 A. M., July 24, to 3 A. M., July 25, 1946, a total of twenty consecutive hours, for which he was paid straight time for eight hours and time and one half for twelve hours. Nevertheless, the claimant believed that he was entitled to be paid straight time from 7 A. M. to 3 P. M., eight hours, time and one half from 3 P. M. to 11 P. M., eight hours, and double time from 11 P. M., July 24th, to 3 A. M., July 25, four hours.
The agreement effective as to rates of pay, July 1, 1942, and effective as to rules, August 1, 1942, is controlling.
POSITION OF EMPLOYES: It is submitted that this claimant was assigned to and did perform emergency work, within the intent and application of the current collective bargaining agreement, and accordingly he was entitled to be compensated therefor in accordance with the applicable provisions thereof.
The service which this claimant performed is provided for in Rule 8, and it was subject to be paid for under the provisions of Rule 5, in pertinent part reading:
In the course of the negotiations which resulted in the adoption of the foregoing rules, it was understood between the parties that Rule 5(f) was to be interpreted and construed as was Rule 5 (b) of the Agreement of May 1, 1929, to the effect that double time would be paid only for hours worked in excess of sixteen hours of continuous actual work and waiting or traveling time was not to be comprehended in the sixteen hours.
We feel that this is an attempt on the part of the Federation to extend the scope of the rules as negotiated and, therefore, the claim should be denied because McWilliams did not actually work sixteen continuous hours. He had five hours and forty-three minutes of rest in the twenty-hour period and, in addition thereto, three hours and thirty minutes of riding time in a passenger coach all without any responsibility.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Considering the application of Rule 8, together with the provisions of Rule 5, it must be held that although Rule 5 (f) reads "worked" and not "service" as per the other paragraphs of that rule, the rule's reference to pay as per home station could be construed to mean the "pay practice" for a day, such as eight hours straight time, eight hours time and one half, eight hours double time. 1223--5 127