same issue was determined between the same parties in Award No.
3445 and like award should follow here.
The respondent Carrier emphatically reasserts that the service performed by the claimant on May 7, 1966 was necessitated by an emergency
condition, requiring immediate attention to facilitate operations and safeguard human life and property. The record shows beyond all doubt that
the governing rules of the current Shop Crafts' Agreement do not provide
for any additional compensation for emergency service performed on Saturday and there can be no basis for a sustaining Award in this case.
In conclusion, the respondent Carrier respectfully reasserts that the
Petitioner's claim in the instant dispute is wholly without merit or support
under the governing agreement rules and should, for the reasons that have
been advanced herein, be either dismissed or denied.
The Carrier is uninformed as to the arguments the Petitioner
Nvill
advance in its ex parte submission and accordingly reserves the right to submit
such additional facts, evidence and argument as it may conclude are required
in replying to the Petitioner's ex parte submission.
(Exhibits not reproduced)
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.
Parties to said dispute were given due notice of hearing thereon.
Claimant is employed as Division Lineman with headquarters at Newton,
Kansas. He is paid on a monthly basis under the provisions of Shop
Crafts' Rule No. 14 captioned "REGULAR ASSIGNMENT TO ROAD
WORK-PAID ON MONTHLY BASIS." His assigned hours are 8:00 A.M.
to 5:00 P.M. with one hour lunch period 12:00 noon to 1:00 P.M., Monday
through Friday, with Saturday as a stand-by day and Sunday as his regularly assigned rest day. On Saturday, May 7, 1966, the sixth day of his
work week, he was called and required to work starting at 2:30 P.M.
The alleged facts, position of each party and the issues as developed on
the property are found in the following:
1. Letter of appeal from denial of the Claim by Superintendent of Communications dated August 2, 1966, addressed to General Manager:
"Claim: That Mr. R. A. Woods be allowed four (4) hours at his
regular. straight time rate for Saturday, May 7, 1966.
"Saturday, May 7, 1966, a rest day for Mr. Woods and also an
available day for emergency work, was called out on this Saturday,
May 7, to make repairs to telegraph wires, numbers 22 and 23.
When Mr. Woods arrived he found wires 22 and 23 patched out,
indicating that the local operator and distant operators were having
no trouble handling their Saturday business, and whatever was
causing the trouble could have waited until, Monday, May 9, 1966 to
handle this ordinary maintenance work. This same trouble occurred
May 22, 1966, a Sunday, and the Wire Chief patched out wires
22 and 23 the same as was done on May 7th. However, for this latter
trouble they did not call Mr. Woods; the proper Carrier officers
realized and elected that the trouble was of no consequence and
could wait until Monday, May 23, 1966. These were identical circumstances of wire trouble and the one on May 7th could have also
been held over until Monday, May 9th."
Rule 14 (i) indicates as follows:
"(i) Where employes now have a bulletined or assigned rest
day, conditions now applicable to such bulletined or assigned rest
day shall hereafter apply to the sixth day of the work week. Where
employes do not now have a bulletined or assigned rest day,
ordinary maintenance or construction work not heretofore required
on Sunday will not be required on the sixth day of the work week."
(emphasis supplied)
"You will note that this paragraph (1) of Rule 14 forces the
same conditions upon the Company that existed prior to September 1,
1949. Those prior conditions were that on Sunday, which is now
Saturday, required the Company to apply the same conditions to
Saturday that was formly applied to Sunday. This line interference
was corrected at the terminal and therefore there was no emergency
and the Company supported that by their actions of May 22nd.
"Mr. Weems denied this claim and these four (4) hours on the
position that it was the Carrier's prerogative to determine when a
case of trouble should and would be handled. The employes do not
quarrel with this position. However, when conditions and positions
exist that violates the employees' rights and the provisions of
the Agreement, then the employe has the right to be made whole
by being compensated four (4) hours for May 7, 1966."
2. Denial of appeal by General Manager-under date of October 11,
1966:
"Our investigation developed that on Saturday, May 7, 1966,
wire trouble developed on wires 22-23 on the Fourth District between
Mattfield Green and Augusta. A patch on the Dispatcher's phone
restore this circuit to operation but left the Carrier short a conversation phone. In this connection, an extra gang consisting of approximately eighty-five men was renewing cross ties and surfacing the
main track between Bazar and Cassoday, and, in order to facilitate
the progress of the extra gang, as well as providing for the
safety of the employes and property, the conversation phone was
required. In order to return the conversation phone to service, the
Chief Dispatcher called the operator at El Dorado so he could test
and determine the location of the trouble. Through various tests,
the trouble was located on Division Lineman Woods' territory
between Mattfield Green and El Dorado; therefore, Claimant Woods
was called to make the repairs necessary to restore the conversation
phone to service.
"In view of the large
force of trackmen (approximately eightyfive employes) working on Saturday, May 7, 1966, all of whom
were either directly or indirecty dependent upon the conversation
phone for their safety, as well as the safety of property and the
expediting of the work, we do not consider the repairs made by
Claimant Woods as ordinary maintenance or construction work; and,
therefore, we can find no violation of Rule 14 of the current Shop
Crafts' Agreement cited in support of your claim. In this connection, we refer you to Second Division Award No. 3445 wherein
the Board, in denying a similar case, had the following to say:
`The work here involved was not ordinary, but extra ordinary, in that it was very seldom required and of necessity
had to be performed on Saturday.'
For the reasons expressed herein, your claim is respectfully
declined.
"Without receding from or prejudicing our position stated
above, we feel there are certain circumstances surrounding this
particular case which you may not be aware of and, therefore,
for your information we will recite these circumstances.
"First, in a Letter of Understanding, dated April 8, 1966, the
Carrier reached an agreement with General Chairman G. E. Tressler
of the BofMofWE to the effect that the assignment of three
correlated extra gangs (approximately eighty-five trackmen) engaged in undertrack plowing operations on the Fourth District,
Middle Division, between El Dorado and Ellinor, Kansas, you would
have an assignment of Tuesday through Saturday in lieu of the
usual Monday through Friday work week for the reason the Monday
through Friday assignment of these gangs severely interferred with
the scheduled arrival of important freight trains, resulting in a
threat by shippers and receivers to divert traffic from our line,
and that by changing the work week of these gangs we could
accomplish a much needed improvement in our railroad and still
retain traffic."
"Second, the above letter of Understanding became effective
with the work week of April 11, 1966, and was to remain in effect
until the operation referred to was completed, or for a period of
approximately eight weeks. Accordingly, this would encompass May 7,
1966, the date of the alleged violation.
"In view of the extroardinary work week of the extra gang involved in the much-needed improvement to your railroad, along with
the threat by shippers and receivers to divert traffic from our line,
perhaps, after further consideration you may want to discuss this
case when you have an opportunity to be in this territory and,
if so, we are agreeable to suspending the time limit to permit
such a discussion."
3.
Appeal from denial by the General Manager to Assistant to the Vice
President, dated November 15, 1966, which adds the following to what was
set forth in the appeal to the General Manager:
"Mr. Olson denied this claim account assigning trackmen to a work
week, Tuesday through Saturday, requiring phone service to this
track gang that was going Tuesday through Saturday when they
should have been working Monday through Friday, except for a
Special Agreement with the Maintenance of Way Employes.
"If an agreement was necessary with the Maintenance of Way to
work outside the established work week, then it is reasonable to
assume and believe that the Electrical Workers should be compensated for work necessary because of this Special Agreement.
This claimant was denied his Agreement rights by this Saturday
assignment and he should be compensated therefor as spelled out in
Rule 14(i) and which has been supported by several Second Division
Awards. This phone trouble was routine work and Division Lineman
Woods should have and be additionally compensated four (4) hours."
4. Denial of appeal by the Assistant to the Vice-President, dated January
12, 1967:
"My investigation of this case revealed the circumstances to be as
outlined to you in General Manager Olson's letter of October 11,
1966. Therefore, the claim on behalf of Division Lineman Woods
is respectfully declined for the reasons given you in that letter,
in which I concur."
The parties are in agreement that: (1) it is the prerogative of management to determine work to be performed and the time of performance;
(2) for performance on a Saturday (the sixth day of the work week) of
ordinary maintenance work not required to be performed on a Sunday
prior to the adoption, by the parties, of the National 40-Hour Work Agreement of March 19, 1949, of which Rule 14(i) is part, an employe is entitled
to additional compensation; and (3) emergency work was required to be
performed on a Sunday prior to May 13, 1949.
The parties are in disagreement as to whether the circumstances under
which the work here involved was performed supports a finding of
"emergency."
Carrier cites Award No. 1944 involving the parties herein and the same
Rule for the propositions that: (1) ". . . the requisite for Sunday work
before the Forty Hour Week rule was not emergency but urgency; not
whether it had been foreseen but whether it could well be prevented;"
(2) work seldom required to be performed on Saturday is not ordinary,
but extraordinary. These propositions are a play on words not supported
by the Rule. The sole test prescribed in Rules 14(i)-which he have no
jurisdiction to enlarge upon-is whether the work, regardless of its nature
or under the circumstances performed, was required to be performed on a
Sunday prior to adoption of the Rule.
The words "ordinary maintenance . . . not . . . required on the sixth
day of the work "week" are, in general usage, not so intelligible as to
definitely reveal the intent of the parties as to their application. They have
no common meaning established by usage and custom in the industry. Consequently, indispensable to interpretation and application is evidence of intent
drawn from the collective bargaining history; or, practice of de facto application on the particular property; or, other evidence of probative value
to prove intent.
The burden of proof that the work here involved was "ordinary maintenance" not required to be performed on a Sunday prior to the adoption
or Rule 14(i) is vested in Organization. It adduced no evidence to satisfy
the burden. We, therefore, are compelled to dismiss the Claim for failure of
proof. See Award No. 3955.
Organization having failed to make a prima facie case of violation of
Rule 14(i) we do not reach consideration of the defenses proffered by
Carrier.
Claim dismissed for lack of proof.
NATIONAL
RAILROAD ADJUSTMENT BOARD
By Order of Second Division
ATTEST: Charles C. McCarthy
Executive Secretary
Dated at Chicago, Illinois, this 27th day of June, 1969.
Central Publishing Co., Indianapolis, Ind. 46206 Printed in U.S.A.
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