Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7098
SECOND DIVISION Docket No.
6,,919
2-T&P-CM-'76
The Second Division consisted of the regular members and in
addition Referee David P. Twomey when award was rendered.
( System Federation No. 121, Railway Employes'
Department, A. F. of L. - C. 1. 0.
Parties to Dispute: ( (Carmen)
(
( Texas and Pacific Railway Company
Dispute: Claim of Employer:
1. That Car Inspectors B. Y. Brown, J. W. Vance aid W. H. Hopper, were
improperly compensated while appearing as witnesses fox Carrier on
February 11, 197+.
2. And accordingly; the Texas and Pacific Railway Company shpuld be
ordered to additionally compensate them for
3 3/4
hours each at pro
rata rate to adjust from straight time rate to time and one-half rate
fox seven (7) hours which they were compensated for as witnesses for
Carrier.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
alb. the evidence, finds that:
The carrier or carriers and the employe or employer involved
in
this
dispute are respectively carrier arid employe within the meaning of the Railway
Labor Act as approved June 21,. 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearar;ce at hearing thereon.
On February 11,
197+,
'the Claimants, Carmen B. Y. Brown, J. W. Vance and
W. H. Hopper under instructions from Superintendent Mr. C. E. Dettmen, reported
to a formal investigation at 1:00 A.M., Monday, February 11,
197+.
The three
Claimants were palled by the Carrier to testify at the investigation on behalf
of the Carrier. The Carmen's Organization did not request the presence of the
three Claimants as witnesses, and called only one witness, the accused. The
Claimants put in for seven hours pay at the overtime rate fox this date. A
dispute arose and the Claimants changed their cards to the straight time rate
so their cards would not be held up, and the instant claim is for the
difference of straight time and time and one-half.
The Organization contends that Rule 3(a) and Rule 3(d) supports their
entitlement fox pay at the time and one-half rate.
Form 1 Award No. 7093
Page 2 Docket No.
6919
2-T&P-CM-'76
The Carrier contends that neither Rule 3(a) nor Rule 3(d) supports the
Organization's contention. Indeed that Rule
3
does not support claim fox
compensation at any rate. The Carrier contends that if there has been a
practice of compensating witnesses fox,aftex-hours attendance at investigations
even at the straight time rate, this practice is purely local and does not
establish a binding precedent. The Carrier has ordered this local practice
of compensating witnesses fox after-hours attendance of investigations at tile
straight time rate stopped (Carrier's Submission p. 11, Carrier's Rebuttal p, 2).
Rule 3( a) states:
"All work performed outside of bulletined hours will be
paid for at the rate of time and one-half until relieved
except as may be provided in rules hereinafter set out."
(emphasis added)
We find that the service performed by the Claimants as witnesses ate the
investigation for the Carrier is "work" within the meaning of Agreement Rule
3(a). Certainly the Carrier had the right to require the Claimants to appeal
at the investigation. And, the Claimants clearly had the obligation to appeaX
or be subject to charges of insubordination for failure to follow they
instructions of Superintendent Dettmen. The Claimants were not themselves
charged with any violation in the matter being investigated. The Claimants
were called in the instant case, during a seven hour period of the dpy which
but for Carrier's instructions would have been their rest, relaxation or
personal time, solely at the behest and for the benefit of the Carrier. We
can find no contractual limitation-on the word "work" as found in Rule 3(a),
no reference is made to the Classification of Work Rules of the signatory
crafts to the Agreement, and we~axe not empowered to rewrite the Agreement.
Thus we find that the serving as witnesses at an investigation after work
hours is "work" within the meaning of Rule 3(a)..
The Claimants were entitled to be paid at the time and a half rate fox the
bane spent at the investigation until relieved by the Carrier. In the Carrier's
Submission p, 1 the assertion is made that the Claimants were paid fox the
waiting period from 7:30 A. M, when their regular shift ended until the h.eax3.pg
began at 10;00 A. M. The organization disagrees with this contention assenting
that the Claimants did not claim time,priox to 10;00 A.M., and that the
transcript of the investigation shows it started at 10:00 A. M. and was concluded
at
5:15
P.M. The transcript is not before this Board and we thus remand this
matter to the property to determine the time spent at the investigation by
the Claimants. They are entitled to the difference between the straight time
rate paid them and the time and one-half rate that should have been paid
them
for the time spent at the investigation.
.A id A R D
Claim sustained as set out in Findings.
Form 1
Page
Attest: Executive Secretary
National Railroad Adjustment Board
B;
~semarie
Brach - 'Administrative
Assistant
Dated at Chicago, Illinois, this 14th
day of July, 1974.
Award No, 7093
Docket No. 6919
2-T&P-CM-176
NATIONAL RAILROAD ADJUSTMENT BOARD
By
Order of Second Division