Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6699
SECOND DIVISION Docket No. 6440
2-N&W-CM-' 74
The Second Division consisted of the regular members and in
.addition Referee Robert M. O'Brien when award was rendered.
( Sytem Federation No. 16, Railway Employes'
( Department, A.F. of L. - C.I.O.
Parties to Dispute: ( (Carmen)
(
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
"l. That the Norfolk and Western Railway Company's refusal to
consistently allow Carmen and Helpers assigned to and
working in the train yards at its Elmore Shops, and at
Oceana, West Virginia, checking in and out pay of one (1)
minute for each hour actually worked, in accordance with
Rule No.
47
of the Current Agreement (VON), and the inconsistent manner in which such pay is allowed to some employes
while denied to others violates said Rule
47
of the Current
Agreement and is both discriminating and damaging to the
employes.
"2. That accordingly the Norfolk and Western Railway Company
be ordered to comply with the agreement, and allow such
checking in and out pay of one (1) minute for each hour
actually worked, of which they have been, and are being
deprived because of such violation, and each subsequent
violation thereafter, until this claim is satisfactorily
settled, to all Carmen and Helpers at Elmore Shops and at
Oceana, West Virginia, who have been and are being deprived
of such pay because of such continuing violation, including
those employes named hereinbelow, with such pay to be retro
active for a period of sixty (60) days prior to February
18, 1971, and to include interest of 6%O per annum to be com
pounded annually on the anniversary date of claim until paid.
"Carmen: Upgraded Helper Carmen: Helper Carmen:
A. G. Hoge, Sr. S. E. Thompson J. J. Clark
J. E. Porterfield P. C. Hubbard Z. W. Lawrence
R. M. Lawrence, Sr. C. J. Pettrey L. L. Mills
M. G. Harvey C. J. Brickford W. W. Bridges
H. D. Aliff A. F. Taylor F. A. Masters
J. 0. Johnson W. B. Clemson S. Santon
A. C. Lilly K. W. Pennington W. R. Cooper
W. C. Underwood W. L. Mathena C. A. Canada
J. C. Farmer W. Green
'` Form 1 Award No. 6699
Page 2 Docket
No. 6440
2-N&W-CM-'74
"Carmen: Helper Carmen:
H. 0. Clemson E. W. Yopp
B. E. Shorter B. J. Higginbotham
R. G. Hall B. T. Hall
J. L. Morris, Jr. . Drexel Duncan
R. R. Hebb J. E. Shorter
J. B. Hamlin J. 0. Pettrey
C. W. McKinney R. E. Ferguson
0. K. Yopp E. R. Davis
W. E. Ford I L. Reynolds
E. L. Sowers, III
R. F. Agee .
E. W. Dehart"
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
1_ 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.
Claim was filed on behalf of carmen working in Carrier's train
. yards: at Elmore Shops, Elmore, West Virginia. It is Petitioner's
contention that those carmen and helpers working on the Shop Track at
Elmore are allowed one minute for each hour worked for checking in
and out, per application of Rule
47,
while those carmen and helpers
working in the train yards are denied this arbitrary although all
Carmen check in and out in the same manner. They contend that RuQ;e
47
is clear and unambiguous, applying to all carmen and the allowance
provided in Rule
47
should not be restricted to those carmen working
in the Shop Track. And since the Rule is clear no past practice to
the contrary can change its meaning.
Carrier, however, maintains that when they merged with the former Virginian Railway Company, an agreement was consumated whereby
former Virginian employees continued to work under the provisions of
their agreements with the former Virginian Railway Company. And under
Rule
47,
as applied on the Virginian Railway Company, employees assigned
Form 1 Award No. 6699
Page 3 Docket No. 6440
2-N&W-CM-'-74
to the transportation yards had not been receiving the arbitrary for
checking in and out prior to the merger. Since Rule 47 has been applied
in this manner for 28 years, Carrier insists Petitioner cannot now challenge such application.
In their submissions to the Board, both Petitioner and Carrier have
set forth principles which they feel are dispositive of the issue at
hand. Petitioner argues that Rule 47 is clear and unambiguous and cannot be altered by any past practice to the contrary. And for their
part, Carrier maintains that a practice of long standing well known
and acquiesced in by the parties should be controlling and should not
now be challenged by the Petitioner. Both these principles have been
well established by this and other Divisions of the National Railroad
Adjustment Board.
It is apparent that uncertainty has arisen relative to the purpose
and intent of Rule 47. This Board feels that in trying to ascertain
what the parties intended when they negotiated Rule 47 a uniform past
practice of 28 years must be given weight. With the exception of a
period of 2 months which Carrier claims was an error, the payment of one
minute for each hour worked account checking in and out has never been
allowed to those carmen in the train yards at Elmore Shops. Such an
accepted practice of long standing must be held, in the instant case at
least, to be conclusive on the intent of Rule 47. Forebearance on
Petitioner's part for such length of time must be considered acquiescence
in the application of Rule 47. We, thus, are constrained to conclude
that the claimants herein are not entitled to the one minute per hour
for checking in and out.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
By
---Rostarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 22nd day of May, 1974.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division