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
(
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That under the controlling Agreement Local Committeeman J. R. Kostek
was unjustly denied pay when, during his regularly assigned working
hours, he represented an employee in formal investigation on January
19, 1978,
at Buffalo, New York.
2. That, accordingly, carrier be ordered to compensate Local CommitteemarL
J. R. Kostek six
(6)
hours at the straight time rate of pay for Januai7
19, 1978.
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.
Parties to said dispute waived right of appearance at hearing thereon.
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.
These rules read in full as follows:
"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
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.
A substantial quantity of evidence was produced by the Organization to show
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
loss of time to committeemen ...' in Rule 32 is more
reasonably interpreted to mean all meetings under this
provision rather than conferences between the local officials
and local committees to discuss non-grievance handling
matters of mutual interest as is asserted by the Carrier."
Emphasis added
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:
"(a) All Employe representatives and witnesses attending the
investigation shall be compensated at the applicable rate of
pay. In addition, employees attending investigation outside
their regular bulletined hours will be allowed a minimum of
two hours travel time at the applicable rate of pay and 25¢
per mile from their residence to the location of the
investigation and 25¢ per mile from the location of 'the
investigation to their residence.
(b) All local employee-representatives shall be allowed eight
hours at the applicable rate of pay to investigate the charges
against the accused employee. The local representative will be
advised of all carrier's witnesses at a reasonable time prior
to the investigation and shall be allowed to discuss the
charges against the accused employe with the employe witnesses
on the witnesses' tour of duty."
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.