(Advance copy. The usual printed copies will be sent later.)
NATIONAL RAILROAD ADJUSTMENT BOARD
Award No. 6399
SECOND DIVISION
Docket No. 6213
2 A&S-CM-'72
The Second Division consisted of the regular members and
in
addition Referee
Irving T.
Bergman
when
award. was
rendered..
( System Federation No. 154., Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( The Alton & Southern Railway Company
Dispute-_Ciaim of Fmploves:
1. That Carrier violated the current agreement when wrecking crew
members R. Farris, V. Hoffman, R. Beswick, R. Drury and G. Abbott
were not allowed to accompany the wrecking outfit on its return to.
home point from derailment on Missouri Pacific Railroad in St. Louis,
Missouri December 19,
20 & 21, 1970.
2.
Findings:
That accordingly, Carrier be ordered to additionally compensate the
above named wrecking crew members as follows:
R. Farris - thirty-two (32) hours at double time rate, two (2)
hours at time and one half rate, and seven (7) hours at straight
time rate.
V. Hoffman - forty-one (41) hours at double time rate.
R. Beswick - twenty-five (25) hours at double time rate and sixteen
(16) hours straight time rate.
R.
Drury - thirty-four
(34) hours double time rate and six (6)
hours at time and one half rate.
G. Abbott - twenty-four hours at double time rate, two (2) hours
at rime and one-half rate, and fifteen (15) hours at straight
time rate.
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 Julie 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
i; 2ved herein.
i
Form 1
Award No.
6399 ( ?
Page 2 Docket No. 6213
2-A&:S-CM-' 72
Parties to said dispute waived right of appearance at hearing thereon.
The Organization claims payment for five wrecking crew members who were
not allowed to accompany the wrecking outfit back to the yard, pursuarl; to a
Memorandum Agreement effective September 1,
1963.
This Agreement stated that in the
application of Article 51 of the current
Agreement between
tie parties, the provisions
of the
1963
Agreement shall apply. It further stated that the
1953
aqreement became
necessary
when the Carrier acquired a
diesel
powered derrick to be used in wrecking
service. Most important, the new Agreement stated, "This Memorandum of Agreement
is adopted to provide an understanding between the parties as to how the wrecking
crews will be established and paid, when used."
Since this claim grew out of the use of the wrecking outfit for a company
other than the carrier herein, that part of the Agreement is worth quoting as
follows: "If the wrecker-derrick and crew are used in
the
sert·ices of a chmpany
other than the A lton and
Southern
Railroad, a
sufficient
number of the wrecking
crew will accompany the outfit to the scene of the wreck and its return to home
station."
There is nothing ambiguous about the quoted provision. This case falls
squarely into the sitli.ation that this new agreement was intended to cover: It was
foreign service and the wrecking crew was to be with the wrecking outfit going to
the scene of the wreck and on returning to the home station, Second Division Awards
No.
4972, 5678, 5784.
The Carrier member has referred to Second Division Awards No.
5545
and
6323.
In the first Award referred to, the Rule which was interpreted did not
require the crew to accompany the wrecking outfit
and
past practice favored the
Carrier. In the second Award referred to, the Rule quoted is nou the sp_n-. e'as the
1963
Agreement in the present case nor does it cover the foreign service provided
for in this M"orsndt~!.
The 1063
Memorand= Of
Agreement says that it was adopted, among other
provisions, to provide how the wrecking crews will be paid: "--~rhile in such
foreign servide,,th? crew will be paid from the time they leave home station until
return for all time worked in accordance with existing rules, and will be straight
time rates for all stra3_ht time hours and overtLne rates for all overtime hours,
including all t;me ws.i
tang
and traveling."
"If
durirT t':e time on the roed, not
including waiting and traveling time, the crew is relieved frems duty and permitted
to go to bed for five or more hours, such relief time will not be paid for;
provided that in no case shall they be paid for a tctal of less than eight hours
each calcndp.r day."
According to our finding above, the crew should have remained with the
wrecking outfit (accompanied it) from 5:00 A.M. on December 19, until 2:00 P.M.
on December 21. According to Ibxle 4 (f) and (g) of the current Agreement betl·een
the parties, service beyond 16 hours cvaputed.from the starting time of the employe's
regular shit shall be paid for at the rate of double time. Also, em, loye required
to render service beyond 24 hours computed from the starting time cf his regular
shift, shall continue at
double time.
Form 1 Award No.
6399
ga 3
Docket
ro. 6213
2-A80 -CM-'72
The starting time
of two
members of the wrecking crew for their regular
sh was 7:00 A.M. on December
19.
Their work was completed at
4:30
P.M. at the
wreck and 9:00 P.M. at the yard, on the same day. Therefore, these members of the
crew did not complete service beyond. sixteen hours. Rule
4
(f) and (g) providing
for double time did not apply to them. Similarly, the wrecking crew member whose
shift was
3
P.M. - 11 P.M. would not be entitled to double time. Two crew members
started their regular shift at
11:58
P.M. and finished. at
7:58
A.M. The record
is not clear on this so we assume that when these two crew members accompanied the
wrecking outfit at 5:00 A.M. on December
19,
they had not completed their regular
shift but had worked. five hours. As a result, they would have completed a total of
sixteen and one half hours at the wreck and 21 hours at the yard. Under rule
4(f)
they would be entitled to five hours at double time minus straight time for the travel
time to the yard, which is not in the record.
Second Division Award No.
6133
provides the reasoning to be applied to
the balance of the tine from
4:30
P.M. on December 19, up to 2:00 P.M. on December
21. It follows, from that Award that the terminal points for the road emergency
service covered. by the Memorandum
of
Agreement would be the time of leaving from and
the time of returning to the home point. Relief time is granted, "only for the purpose .
of granting rest to fit the employe for continuation of the tasks ahead." The only
purpose for waiting from 4:30 P.M.
on
December
19,
would have been to accompany the
wrecking outfit on its return to the home point. No rest would. have been required
Therefore, all the waiting and traveling time after 4:30.P.M. on December 19 to
?,'00 P.M. on December 21, wrnuld be paid time. Award No. 4972.submitted to support
meaning of "accompany", also stated that the tL-ie not worked should be at the
pro rata rate. We agree, and interpret the Memorandum of Agreement to mean overtime
x<: > to be applied only, for all time worked., although payment is to be made for
u11 time while accompanying the wrecking outfit, including waiting and travel time.
Since
no
penalty payment is intended, nor is it provided for or claimed,
the Carrier is entitled. to take credit for any payments made
to
these employes
duriiug the period from 5:00 A.M. December 19 to 2:00 P.M. December 21, in order to
avoid. paying twice for the sane hoixrs.
A W A R D
Claim ;;o. 1 is sustained, Claim No. 2 is disposed of according to the
above
J.
:U7,~ in-'s .
NATIONAL RAILROAD ADJIIJSTAE NT BOARD
By Order of Second. Division
I
Attest: .
Execut1':e
2Ecletary
tcd at Chicagc, ; Ilinois, this 16th day of havember, 31.972 .
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