The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.
SYSTEM FEDERATION NO. 6, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Machinists)
EMPLOYES' STATEMENT OF FACTS: On October 1, 1963, Machinist B. D. Wright was notified that he would be given an investigation at El Reno, Oklahoma. The following day a second notice was given the claimant informing him that the investigation would be held at Enid, Oklahoma, instead of El Reno. The committee, as in the past and in conformity with the agreement, then proceeded to Enid to represent the claimant. Upon arrival at the hearing, the carrier ordered two of the committee to leave the hearing room. The carrier also refused to compensate the committee for the time away from work, thereby causing Messrs. C. O. Borchers, L. O. Marquardt, and Otis Cox, hereinafter called the claimants, to lose time.
This dispute has been handled in accordance with the agreement, but the carrier has declined to make any adjustment.
The agreement effective October 16, 1948, as subsequently amended, is controlling.
POSITION OF EMPLOYES: On October 1, 1935, the Chicago, Rock Island and Pacific Railroad Company, hereinafter referred to as the carrier, and
would not agree. The final rule (Rule 34) agreed upon continued the singular reference to "representative" and it has not subsequently been changed. The rule does not refer to "Committee."
Although Rule 32, as it appears in the 1949 agreement, was modified to include the time limit provisions of the August 21, 1954 Non-Operating Employees' National Agreement the above cited paragraph was not changed. It, very explicitly, refers to the "local committee_ and "committeemen" whereas Rule 34 refers to "duly authorized representative."
That the foregoing is the correct interpretation to be applied to such rules is clearly established in Awards No. 3260 and 4288 of the Second Division, National Railroad Adjustment Board, with Refree Hornbeck, on the property of the Reading Railroad. Involved in Award No. 3260 were similar rules and for ready appraisal by the board we here quote the findings and award of Award No. 3260, as well as the Labor Members' dissent:
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.
On the undisputed facts, although Local Chairman Dolo was notified of the hearing of Hugendubler, he was not requested or directed by the carrier to appear but attend upon the request and on behalf of Hugendubler.
The time for which Dolo makes claim is not for a period during his regular working hours.
The employees assert that Claim No. 1 should be allowed under Rule 34(a) and particularly because of the second paragraph thereof which reads:
The paragraph just quoted refers only to the subject matter of the first paragraph of 34(a) viz: unjust dealings by the company toward any employee of violation of any of the provisions of the agreement.
under (b) of the rule. Rule 34 (a) has no application to the facts here developed.
There is then no issue whether Dolo is to be compensated for the loss of time he claims to have suffered because it did not arise, as he claims, by reason of a `conference between local officials and local committeemen' as provided in Rule 34(a).
If this submission involved a conference Second Division Award No. 2889 holds against the contention of the employees.
Award No. 172, Second Division, cited by employees, allowed claim which covered period during claimants regular working hours while handling grievances.
Awards No. 1348 and 2736, Second Division, also cited by employees, were for time served or lost other than during their regular tours of duty but while serving as witnesses upon orders of the carrier.
The majority's statement that `although Local Chairman Dola (sic) was notified of the hearing of Hugendubler, he was not requested or directed by the Carrier to appear . . .' implies that it was not necessary for him to do so. The fact is, however, that Rule 34 clearly contemplates that in controversy between employees and the Carrier the employee should be represented by his duly authorized representative-in this instance the local chairman.
"Under what section of Rule 34 the hearing of Hugendubler proceeded has no bearing on the instant dispute. The claim is in behalf of the local chairman and therefore paragraph (a) of Rule 34 has application to the facts developed in the case. The issue is definitely whether Local Chairman Dola (sic) is entitled to compnsation for the loss of time he suffered by reason of a conference (hearing held pursuant to Rule 34(b)) which he had to attend. That he is entitled to compensation is shown by Rule 34(a) which requires that all such conferences be held without loss of time to committeemen.
The majority, after stating that the claim did not arise by reason of a conference, then states `if this submission involved a conference Second Division Award No. 2889 holds against the contention of the employes.' The majority's apparent inability to recognize what the facts are in the case may be the cause of the majority's failure to recognize that paragraph (a) of
Rule 34 is applicable. Since the carrier elected to hold the conference outside the local chairman's regular working hours he is entitled to compensation as claimed.
In Award No. 4288 which ivolved rules very similar to those here in dispute, your Board said:
The organization here relies primarily upon Award No. 3845, which was sustained on this property in a similar dispute between the carmen and this carrier.
When Award No. 3845 was rendered the claim of the carmen under the shop crafts' agreement was sustained-without an interpretation being made by the board on the rules involved. The apparent basis for sustaining the claim in Award No. 3845 was solely on the basis of "local practice" cited by the organization.
It is the carrier's opinion that the basis for sustaining the claim in Award No. 3845 has no validity, in view of the express agreement provision to be found on Page 67 of the shop crafts agrement, which reads:
Immediately upon receipt of Award No. 3845, we satisfied the claims relying upon that award, but, on March 27, 1962, wrote the general chairmen of the organization as follows:
Following conference held on May 3, 1962, the carrier advised the general chairman involved (and other general chairmen) under date of May 4, 1962, as follows:
She Carrier feels it is apparent in Award 3845 that the Board did not even attempt to interpret the rules involved but bottomed the award solely on the citations of local past practice cited by the carmen's organization. The carrier feels the findings of Award 3845 were erroneous, in that the board in that case erroneously construed local practice as evidently constituting agreement as to application of the rules, because the carrier has a specific rule (hereinbefore cited) which says "no local mutual agreement will be made on these rules except on approval of the parties signatory hereto." The carrier signatories are the:
on this subject is clearly wrong, because the authorized carrier representatives never approved such an arrangement.
The interpretation of the rule is what is in dispute-unclouded by any local practice-as no agreement in behalf of local practice exists, and the carrier feels it is entitled to an interpretation from the board on the rules involved, absent any other factor. The interpretation of the carrier is exactly the same as that of the carrier in Award 3260 under similar rules. The board in that case did interpret the rules, as should have been done in Award 3845but which was not done.
Your board will further note the statement of claim in Award 3845 read, in part:
Your board needs no reminder that it is unable to rewrite the rules of the agreement, but this is what the employees would ask your board to do.
Rule 32, which by its nature and design is not applicable in this dispute, covers conferences between local officials and local committeemen. Rule 34 pertains to an employee's representation by his duly authorized representative.
The employees under part 1 of their claim ask your Board to say that these two different words be enforced as equal. Such a change can be made only through the processes of negotiation, mediation, arbitration, etc. As pointed out already, the Employes have not been able to secure what is here asked through negotiation with management.
Furthermore, under Award 3845 the claimants attended the investigation but were denied pay. Here two of the claimants did not attend the investigation and were not required by Carrier to lose time. Mr. Borchers attended the investigation solely to represent the principal.
The carrier feels the foregoing is most conclusive to the fact that the position of the employees is totally without Agreement support and the claim should be denied.
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 2.1, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Carrier refused to permit the local committeemen, other than the local chairman, who represented the employe under investigation, to be present. It is stated in the Employes' submission ad not denied, that the Carrier "refused to compensate the committee for the time away from work, thereby causing Messrs. C. 0. Borchers, L. 0. Marquardt, ad Otis Cox, hereinafter called the Claimants, to lose time." The remedy demanded is that each be compensated for five hours at pro rata rate, plus $3.75 for meals, and that a total of $13.60 be allowed them for auto mileage.
This is claimed under Award 3845, in which this Division said that for many years "* * * both the Carrier and the Organizations have recognized that the local committees were entitled to represent employes in the handling of disputes, controversies and investigations with local officials during their working hours, without loss of time. Without denial by the Carrier they cite forty such instances of discipline hearings at four points in Arkansas, Kansas and Illinois between 1941 and 1958, and state that it is only a partial list. In view of this record the claim must be sustained."
There, as in this case, there was a showing of a widespread established practice on Carrier's system that local committeemen had been "present with no loss of time while attending investigation," but with no reference to their representation of the employee under examination, or of any right on his part to be represented by all of them. Therefore Award 3845 is in error in its reference to the representation of employes under investigation, but is correct as to the established recognition of local committeemen's right to attend investigations during their working hours, without loss of time.
We follow Award 3845 to that extent here, and hold that as the three committeemen presented themselves at the hearing they were entitled to attend without loss of time, and should be compensated for any pay deduction made on that account, not exceeding the five hours claimed.
There is no showing of any rule or established practice for payment for meals or travel expense in that connection, or even that any such expenses were incurred by the Claimants; therefore those items of the claim cannot be sustained.