The Second Division consisted of the regular members and in
addition Referee James P. Carey, Jr. when award was rendered.
SYSTEM FEDERATION NO. 2 RAILWAY EMPLOYES'
DEPARTMENT A. F. of L.-C. I. O. (Carmen)
EMPLOYES' STATEMENT OF FACTS: Mr. M. C1ifPe and Mr. Paul Mezo, hereinafter referred to as the claimants, are regularly employed by the Missouri Pacific Railroad Company, hereinafter referred to as the carrier, as car inspectors at Twenty-first Street Yards, St. Louis, Missouri. Claimant Cliffe has a work week of Saturday, Sunday, Monday, Tuesday, Thursday, rest days Wednesday and Friday, hours 7 :00 A. M. to 3:00 P. M. Claimant Mezo has a work week of Saturday through Wednesday, rest days Thursday and Friday, hours 7:00 A. M. to 3:00 P. M.
The claimants were notified by the carrier to appear as carrier witnesses at an investigation scheduled for August 12, 195 7 ; however, the investigation was postponed until 9:00 A. M. (CST), Friday, August 16, 1957, a rest day of both claimants, and the employes herewith refer your Honorable Board to employes' Exhibit A which is general car foreman, Mr. T. A. Cummings' letter of October 9, 1957, addressed to Local Chairman Carl B. Edwards, and which substantiated the employes' contention that the claimants were called as carrier witnesses at the investigation.
The claimants reported as instructed and were required to remain at the investigation from 9:00 A. M. until 3:00 P. M., a total of six (6) hours, as
entitled the claimant to 8 hours pay at the straight time rate. The claim was denied and payment under the specific rule approved. The carrier in course of collective bargaining agreed to the rule in view of the working conditions of signalmen. The rule illustrates a type of rule that resulted from collective bargaining in a specific situation. Note that although 16 hours of claimant's time was consumed, he was allowed only 8 hours and that at the straight time rate even though it was a rest day. It is interesting to note that the same referee sat with the Third Division in that dispute as sat with this Division in Docket 2561, Award 2736.
The same considerations would enter into a decision to determine the terms of an implied contract if Judge Swacker's theory were pursued. The facts which we have discussed immediately above are the factors which an equity court would consider. For that reason the carrier emphatically states that the doctrine of implied contract has been improperly applied if this Division should consider the doctrine within its province to apply which the carrier states is not within its province.
To summarize, we have shown that the carrier is entitled to reargue the issues in Award 2736 because of new evidence. We have shown that the agreement is intentionally devoid of a special rule covering the issue in this claim as the result of collective bargaining. We have shown that the claim is not supported by the practice on this property. We have shown that rules cited by the employes have no application to claims of this nature. It follows that this Board has no alternative but to dismiss the claims for lack of any authority upon which it can resolve the dispute.
But if the Board should not deny the claim, then the claim cannot be sustained as presented because the amount requested is unreasonable and excessive for the time and effort expended.
The carrier is firmly convinced that the proper course for this Board is to dismiss the claim because not supported by the rules.
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.
The majority states "We find nothing in the classification of work rules which can be said to afford a reasonable basis for allowing compensation such as is claimed here." Such reasoning, if followed to a logical conclusion, would make it necessary to define even the most minute details involving every type of service to be performed. However, there is no need for specifically defining every possible service to be performed since it is an elementary principle of the law of contract that if the employer calls upon the employe to perform any service the employer thereby creates an obligation to pay for such service if the employe responds. The claimant was called by the carrier to attend an investigation. He responded and unless he is compensated for such service he is being unjustly dealt with. The service performed lies within the scope of the collective agreement and we submit that a reasonable interpretation of Rule 4 requires that claimant be compensated in accordance with its terms.