Form 1 NATIONAL RAILROAD ADJUST".ENT BOARD Award No.
8143.
SECOND DIVISION Docket No. 7793
2-N&W-CM-' 79
The Second Division consisted of the regular members and in
addition Referee James F. Scearce when award was rendered.
( System Federation No. 16, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Norfolk and Western Railway Company
Dispute: Claim of Emroloyes
1. That under the current working
agreement Carmen
Local Chairman
Simon P. Camp and Vice Local Chairman
;'r.
E. Schultz were unjustly
denied pay and reirrburse=t for transportation costs when representing Carmen in formal investigation during their regular
working hours on July 16, 1976.
2. That, accordingly, carrier be ordered to compensate Local
Chairman Simon P. Camp and Vice Local Chairman
'd.
E. Schultz
seven (7) hours each at straight time rate of pay for July 16,
1976, and fourteen dollars ($14.00) for transportation costs
incurred on the same date.
Find
ing,s ;
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carrier and the employe car employes involved in this
dispute are respectively carrier and employe within the meaping 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.
On July 16, 1976 the Claimant., herein, who were duly authorized to c'.o so.
represented an employee in tine investigation of a grievance. To do so, it was
necessary that they depart their o-~m location -- Frankfort, Indiana and travel.
to Indianapolis-- sorrie fifty (50) miles away, thereafter returning to their
home location. Such initial -travel, the subseauent meeting and the return
trip was consummated during their regular work hours. Upon presentation of a
claim for such time and travel costs (at $.14 per mile), the Claimants were
denied compensation.
The Organization cites two provisions of the Agreement in effect between
the parties as controlling here:
Form 1 Award No.
8141
Page 2 Docket No. 7'33
2-N&',N-CM-' '9
Rule 32 - Grievances
Should any employe subject to this agreement believe he has been
unjustly dealt with or any of the provisions of this agreement
have been violated, he shall have the right to take the matter up
with his foreman in person or through the duly authorized local
committee within ten days. If unable to arrive at a satisfactory
settlement with the foreman, the case may be taken to the highest
local officials in the regular order, preferably in writing. If
stenographic report of investigation is taken, the committee shall
be furnished a copy. If the result still be unsatisfactory, the
employe or the duly authorized general con- ttee shall have the
right of appeal, preferably in writing, with the higher officials
designated to handle such matters in their respective order, and
conference will be granted within ten days of application.
Should the highest designated railroad official, or his duly
authorized representative, and the duly authorized representative of
the employes fail to agree, the case may then be handled in
accordance with the Railway Labor Act.
All conferences between the local. officials and local committees to
be held during regular working hours without loss of time to corrmittemen. Prior to assertion of grievances as herein provided and vrhile
questions are pending, there will neither be a shutdown by the employer
nor a suspension of work by the employe.
Rule
34
The Company will not discriminate against any committeemen who, from
time to time, represent other employes, and will grant them leave of
absence and free transportation uinen delegated to represent other
employes.
The Organization also asserts a longstanding past practice of compensation of representatives when engaged in such efforts, as well as
reimbursement for personal ;,ransportation costs as incurred herein. It
submits numerous affidavits from past and present representatives throughout
the Carrier's system attesting to this practice.
In contrast, the Carrier contends that Rule 32 is in-applicable here, in that
the work of the representatives involved "investigation" rather than a
"conference" and which it explains entails two completely different purposes -an investigation being a function at the Organization's behest and which is not
Form 1 Award No. 8141
Page
3 Docket No. 7793
2-N&W-CM-'79
compensable, and a
conference being an informal meeting to discuss :ratters
of general interest to both parties which is compensable. The Carrier
points to the specific term conference in Rule 32. As to Rule 34, the
Carrier contends the Claimants were granted leaves of absence -- which is
not compensable and that transportation, if any, would be that provided
the Carrier, and not reimbursement for use of a personal vehicle. Both
parties supported their positions by prior Awards.
It may be that the framers of Rule 32 intended a different meaning as
between "investigation" and "conference," but if so, such distinction avas
not made manifest. If, as the Carrier contends, conferences are not related to the work of investigating and/or resolving grievances, it does not
follow that a provision relative to conferences (as defined by the Carrier)
would be integral to the Rule which clearly sets forth as its purpose the
procedure for grievance handling. Thus, it seems obvious that the presence
of the expression "All conferences between the local officials and local
committees to be held during regular working hours without lass of tine to
committeemen. . " in Rule 32 is more reasonably interpreted to mean all
meetings i.Lnler this nrovi sion rather than conferences between the local
officials and local cj=ittens to discuos non-sr.evance hardlina matters
of mutual interes ; as is asserted by the Carrier.
As to Rule 34, using the same rationale as before, this provision wo,.ald.
appear to be applicable to non-routine duties of a committeeman. The term
"other employees" as cited in the Rule would more likely relate to employees;
of the Carrier who are properly represented. by the Organization, but who area
outside the normal sphere of representation of the specific Organization
official involved. In other words, this provision would appear to have been
established to deal with special circr,;.stances where representation would beg
outside the normal conduct of affairs. This interpretation would appear to
be reinforced by the expression "when delegated" as found in Rule 34; thus
giving support to the application of this Rule to special circumstances.
Vie conclude that Rule 32 is properly interpreted to ensure that duly
authorized officials have a right to represent the interest of employees in
matters related to grievances and will not be required to suffer loss of
time (and thus wages) in the process. This applies to the interests of employees within the n=al scope of any such duly authorized official. The
fact that the Carrier placed the Claimants herein on leaves of absence does
not compel a conclusion that such action
was taken under Rule 34; even given
that the Claimants acted under the provisions of Rule 32, the Carrier's
actions (i.e. placing them on leaves of absence) would be a sound business
practice for purpose of accountability. However, we are not inclined to
support the Organizations claim for riileage costs. Rule 32 makes no reference to this aspect of grievance handling and it is here that a showing
Form 1
Page 4
Award No.
8141
Docket No. 7793
2-N&Y-CL4-' 79
of a "past practice" would come into play. No such showing was made by
the
Organization on
the record.
A W A R D
Claims
are affirmed to the extent that the Claimants shall
be compensated for straight time at the appropriate rate of pay
for July 16, 19760
NATIONAL RAILROAD ADJUSTTI.ENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY
.1~,Y.r"~Y
- ~marie Branch - Acim:inis-Lrati~v'e~Assistant
Dated at Chicago, Illinois, this 17th day of October,
1979.