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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..



Parties to Dispute: ( (Carmen)
(
( The Alton & Southern Railway Company

Dispute-_Ciaim of Fmploves:





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.


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~!.


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.



        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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