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Award No. 5159
Docket No. 4897
2-C&NW-MA '67
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Harry Abrahams when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 12, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Machinists)
CHICAGO AND NORTH WESTERN RAILWAY COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That the Chicago and North Western Railway Company violated the collective agreement and unjustly treated Machinist J. J.
Pringle when it suspended him from service on August 31, 1964, and
discharged him from service on September 5, 1964.
2. That accordingly, the Chicago and North Western Railway
Company be ordered to reinstate this employe with seniority rights
unimpaired and compensate him at Machinist pro rata rate plus six
percent (6%) interest for all wage earnings deprived of; also for
fringe benefits (vacations, holidays, premiums for hospital, surgical,
medical and group life insurance) deprived of since August 31, 1964,
until restored to service.
EMPLOYES' STATEMENT OF FACTS: Mr. J. J. Pringle hereinafter
referred
to as
the claimant was employed as a Machinist by the Chicago and
North Western Railway Company, hereinafter referred to as the carrier, at
,Clinton, Iowa. The claimant has a discipline free service record with the
Carrier and was first employed in 1947.
The Car Shops Superintendent Mr. R. E. Powers suspended the claimant
from service at the close of his shift on August 31, 1964. On September 1, 1964,
4Car Shops Superintendent R. E. Powers charged the claimant as follows:
"CHARGE: Your responsibility for your failure
to
properly perform your duties as Machinist in the Wheel Shop, Clinton, Iowa, while
assigned to work on the burnishing lathe, .specifically your failure to
comply with specific instructions to produce a minimum of 9 axles
per hour during your tour of duty and your failure to do so on August
31, August 28, 1964, and dates prior thereto, resulting in your being
suspended from service August 31, 1964."
If it is found that charges are not sustained, such employe shall
be returned to service and paid for all regular time lost."
Under this rule the claimant would be entitled only to time lost less earnings in outside employment (see Second Division Award No. 1638 involving
the same rule and the same parties), if he were entitled to reinstatement,
which he
is not. It will -be noted that the rule makes no provision for payment
of six percent interest or the fringe benefits referred to in .the statement of
claim. In this respect, the claim in this case constitutes in part a request
for a new rule, which is beyond the jurisdiction of this board. The board's
authority is limited to interpretation of existing rules, and does not extend
to promulgating new rules under the guise of interpretation of existing rules.
In denying a similar claim in Second Division Award No. 3883, the findings
stated in part:
"The claim for reimbursement of medical and hospital expense in
the amount of $182,
which was
born by the claimant, would have been
satisfied by the insurance company if the claimant's group insurance
had not been cancelled when he was discharged. If this were a common law action for the recovery of consequential damages for breach
of contract, and if this Board possessed general judicial powers, such
medical and hospital expense, if proven, would constitute proper elements of damage. However, this Board has limited power under the
law, and it is confined to the interpretation or application of the collective bargaining agreement entered into by the parties.
The contracting parties have specifically agreed that the damages
for contract violation such as occurred in this case, is the amount of
wages shown to have been lost, less earnings from other sources.
Other elements of consequential damage have been excluded by implication. The term `wage' in its ordinary and popular sense means payment of a specific sum for services performed. That is the sense in
which the term is used in this agreement. The language of Rule 34
has been in effect since 1941, long before ;the contracting parties had
provided for group insurance for hospital or medical expenses. The
insurance program which was in effect in July 1957 was specifically
declared in the 1956 agreement to be in addition to the wage adjustments therein provided. It was by the parties' own arrangement distinguished from wages. Eligibility for hospital and medical insurance
protection is derived from employment status, but it is not in the
usual and ordinary sense an integral part of a wage rate. We conclude
that this Board lacks the power to order the carrier to reimburse the
claimant for his medical and hospital expense."
The claim is without merit and should be denied.
(Exhibits not reproduced.)
FINDINGS: The Second Division of the Adjustment Board, upon the
whole record and all the evidence, finds that:
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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.
Parties to said dispute waived. right of appearance at hearing thereon.
Employe J. J. Pringle on September 5, 1964 was discharged because he
deliberately slowed down and during his tours of duty, and on August 28 and
August 31, 1964 did not produce an average of 9 axles per hour over a period
of 8 hours of work.
The production of 9 axles an hour as above set out did not constitute an
undue work load or hardship.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Charles C. McCarthy
Executive Secretary
Dated at Chicago, Illinois, this 28th day of April, 1967.
LABOR MEMBERS' DISSENT TO AWARD 5159
The Referee and Carrier members of this Division constituted the majority
in this instant award. We contend that they are in error in their findings
when they stated:
"Employe J. J. Pringle on September 5, 1964, was discharged
because he deliberately slowed down and during his tours of duty,
and on August 28 and August 31, 1964, did not produce an average of
nine axles per hour over a period of eight hours of work.
The production of nine axles an hour as above set out did not
constitute an undue workload or hardship."
The dispute and remedial action sought by the claimant before this Division teas:
"1. The Chicago & North Western Railway Company violated the
collective agreement and unjustly treated Machinist J. J. Pringle when
it suspended him from service on August 31, 1964, and discharged
him from service on September 5, 1964.
2. That accordingly, the Chicago & North Western Railway
Company be ordered to reinstate this employe with seniority rights
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unimpaired and compensate him at Machinist pro-rata plus six percent
(6%) interest for all wage earnings deprived of; also for fringe benefits (vacations, holidays, premiums for hospital, surgical, medical and
group life insurance) deprived of since August 31, 1964, until restored
to service."
We contend the Referee's conclusions are not based on facts projected
in the record, agreement rules controlling and with obvious disregard to the
principles of an impartial hearing and the Carrier's obligation to sustain their
burden of proof insofar as the allegations and/or charges made against the
instant claimant. For example:
"Employe J. J. Pringle on September 5, 1964, was discharged
because he deliberately slowed down and during his tours of duty, and
on August 28 and August 31, 1964, did not produce an average of 9
axles per hour over a period of 8 hours of work." (Emphasis ours.)
The record as a whole before us reveals that the specific charge against
the claimant (see Employes' Exhibit A) is the letter dated September 1, 1964,
over the signature of Mr. R. E. Powers, the Superintendent of Cars. We quote
in pertinent part:
"Charge: Your responsibility for your failure to properly perform
your duties as Machinist in Wheel Shop, Clinton, Iowa, while assigned
to work on the burnishing lathe. Specifically, your failure to comply
with specific instructions to produce a minimum of 9 axles per hour
during your tour of duty and your failure to do so on August 31 and
August 28, 1964 . . ."
After the hearing and/or investigation dealing with the above charges,
we find Employes' Exhibit C, a letter addressed to Mr. J. J. Pringle dated
September 5, 1964, over the signature of Mr. R. E. Powers, Superintendent of
Shops, is the verdict and discipline applied (Dismissed), as follows:
"Your responsibility for your failure to properly perform your
duties as a Machinist in the Wheel Shop, Clinton, Iowa, while assigned
to work on the burnishing lathe; specifically your failure to comply
with specific instructions to produce a minimum of 9 axles per hour
during your tour of duty and your failure to do so on August 31,
August 28, 1964, and dates prior thereto resulting in your being suspended from service August 31, 1964.
The following discipline has been applied; dismissed."
There was nothing in the original charge or in the letter of dismissal to
the claimant alluding to or specifically stating that the employe deliberately
slowed down. Therefore, the majority reached out into space to conclude such
language in their findings. Added to this erroneous conclusion, they stated:
"The production of 9 axles an hour as above set out did not constitute an undue workload or hardship."
The record is replete with statements made by Mr. Powers (the Carrier's
witness), who was also an oficial of this Carrier as well as the moving officer
in filing the charges against the claimant and suspending him from service,
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such as alleged time and
motion studies made by the witness and others, and
historical data on production in the Wheel Shop and on this particular machine
in question.
Mr. Powers gave lengthy testimony dealing with time and motion studies
and personal observations on production and other things. Then, on page 5 of
Employes' Exhibit B of transcript, a leading question from the Carrier was
put to their witness, Mr. Powers:
"Q. Did you say that because of these observations, and because of
authentic historical information which has been made a matter
of record, that your instructions regarding the nine axles per
hour does not place an undue workload or
hardship on
an employe
operating this burnishing machine?
A. I did so say.
Q. From the information you have available, and your historical
authentic facts, what amount of axles have been turned out on
this burnishing lathe without undue hardship or workload on the
employe?
A. As high as thirteen an hour eighty in an eight hour day.
Q. What was the average number on certain occasions that was
turned out on this burnishing lathe without undue hardship on the
employe?
A. Eleven."
At this point in the investigation, Mr. Bell, claimant's union representative, requested the following:
"(Mr. Bell asked that the question be repeated, and also asked
if there was a specific date on which this happened. He also asked
that this be made a part of the transcript.)"
The Carrier then directed a question to Mr. Powers as follows:
"Q. Do you have in your possession, specific times and dates regarding the output on this burnishing machine?
A. Yes, sir."
In view of the fact that the Carrier officers insist that records exist and
the fact that the Union requested such records to be made available and part of
the transcript and the Carrier's failure to them provide such alleged records,
it is fair to conclude that there are no records at all. We contend that the
defendant in this investigation was placed in an adverse position insofar as
being able to observe the alleged data and question the credibility of the
statements of the Carrier's witness. Therefore, .the majority of this Division
had no substance of fact, actual rules of the agreement or unimpeachable
record before them to arrive at such an unjust decision.
There is no probative evidence in the entire record of the Carrier, including
the record of transcript of the investigation, to support the allegations and
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assertions of the Carrier's witnesses. This is in face of the fact that during the
course of the investigative hearing, the claimant's union representative requested that the alleged evidence being testified to by the Carrier's witness be
produced by said witness and made part of the record.
It may .be fairly stated that this Carrier's witness (Mr. Powers) has a
definite personal interest in giving such testimony as he did. As the record
will reflect, the claimant was pulled out of service prior to the investigation.
Therefore, a certain measure of punishment had already been administered
which for all intents and purposes had to be justified by the Carrier's
investigation.
This Division by action of the majority vote has exceeded its authority in
making this award. They have subscribed to piece work when no such rule
exists in the collective bargaining agreement and have apparently ignored
the controlling rule which deals with the basic day of an employe:
"Rule No. 1. Eight (8) hours shall constitute a day's work. All
employes coming under the provisions of this schedule shall be paid
on the hourly .basis, except as otherwise specified."
Rule
11/2,
Work Week, states:
"The expressions `positions' and `work' used in this rule refer to
service, duties or operations necessary to be performed the specified
number of days per week. . ."
There is no mention in the above rules of piece work or the like. Therefore, the Referee was improper to go outside of the agreement to insert his
unqualified judgment. It is well established by the courts and the National
Railroad Adjustment Board as a whole that the Board's task is to construe and
apply agreements, not to rewrite them.
R. E. Stenzinger
E. J. McDermott
C. E. Bagwell
O. L. Wertz
D. S. Anderson
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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