Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8654
SECOND DIVISION Docket No. 8508
2-NS&w-CM-' 81
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada




Dispute: Claim of Employes:





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 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.



Local Committeeman J. R. Kostek, in his capacity as a duly authorized representative of the Carrier's Car Department employes at Buffalo, New York, represented an employe in a formal investigative hearing on January 19, 1978, beginning at approximately 9 a.m. The hearing lasted until at least 3 p.m. The Local Committeeman's regular assigned hours that day were from 7 a.m. to 3 P.m.

The Carrier deducted six hours' time from the Local Committeeman's pay on this date. The Organization claims this is contrary to the provisions of Rules 32 and 34.






Form 1 Award No. 8654
Page 2 Docket No. 8508
2-N&W-CM-'81
"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 committee 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 committeemen. Prior to assertion
of grievances as herein provided and while 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 committee
men who, from time to time, represent other employes, and
will grant them leave of absence and free transportation
when delegated to represent other employes."

Recently issued Award No. 8141 (Scearce) involved the same Organization and the same Carrier and dealt with the sane issue (as well as the matter of transportation reimbursement expense, not at issue here). The Board has reviewed Award No. 8141 and finds no basis to fault the conclusions reached therein.


that in numerous instances no deduction in pay from regularly scheduled time had
been made by the same Carrier under identical circumstances. The Carrier answers
this by stating emphatically the well established principle, here endorsed by the
Board, that no amount of past. practice may vary the meaning of clear and
unambiguous agreement language. But the key word here is "conference", which the
Carrier claims to be something quite separate from meetings involved under the
processing of grievances as provided in Rule 32, including investigative hearings.
In other words, there is some lack of total clarity in its meaning. In the face
of such ambiguity, past practice, of course, takes on an important significance.
As stated in Award No. 8141:
Form 1 Award No. 8654
Page 3 Docket No. 8508
2-N&w-CM-' 81
"It may be that the framers of Rule 32 intended a different
meaning as between 'investigation' and 'conference', but if so,
such distinction was 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







The Carrier raises another argument which requires discussion. The Carrier points out that the Organization had sought additional language in the applicable agreement concerning this subject and had failed to achieve it. Again, the Carrier relies upon a well established principle that where a new provision is sought and not obtained, it follows logically that such provision may not be "read into" the existing agreement.

But again, the application of this principle is not persuasive here. According to the Carrier, the rules change sought by the Organization was as follows:





Note that this change goes far beyond the point at issue here. It calls, among other things, for wage payments to witnesses; mileage allowance; pay for representatives regardless of their hours of work; and time,for investigation of charges -- none of which is involved in the claim now before the Board. The unsuccessful request for addition of such benefits cannot be read to negate the resolution of the single issue here; the definition of "conference" under Rule ,32.
Form 1
Page 4

Award No. 8654
Docket No. 8508
2-NSW-CM-' 81

In sum, the evidence shows that the Carrier and the Organization have in the past generally recognized "conference" in Rule 32 to include the attendance without loss of pay of a duly authorized committeeman to represent a claimant at an investigative hearing. The Carrier now seeks to redefine the word "conference" in the face of its previously accepted meaning. As pointedly detailed in Award No. 8141, the Board reaffirms that the Carrier is not persuasive in its limited interpretation of Rule 32.

A W A R D

Claim sustained. Claimant will be paid six hours at the straight time rate of pay for January 19, 1978.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division


Attest: Executive Secretary
National Railroad Adjustment Board

By ~
R semarie Brasch - Administ~ ive Assistant

Dated at Chicago, Illinois, this 4th day of March, 1981.