Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No. 8681
SECOND DIVISION Docket No. 8570
2-D&RGW-FO-'81
The Second Division consisted of the regular members and in
addition Referee James F. Scearce when award was rendered.
( International Brotherhood of Firemen & Oilers
Parties to Dispute:
( Denver and Rio Grande Western Railroad Company
Dispute: Claim of Employes:
1. Under the current controlling Agreement, Jr. John V. Bowling, laborer
Grand Junction, Colorado, was denied the right to work the last four
hours of his shift on August
3,
1978.
2. That, accordingly, The Denver and Rio Grande Western Railroad Company, be
ordered to compensate Mr. John V. Bowling for four hours pay at the pro
rata rate.
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.
Claimant was regularly assigned on the day shift as a Laborer at the Carrier's
diesel locomotive facility at Grand Junction, Colorado. On August 3, 1978, the
Claimant was called off the overtime board to fill a vacancy on the preceding shift.
He worked eight
(8)
hours on the overtime turn, part of which was as a "Hostler
Helper;" in this capacity, he assisted the "Hostler," who was responsibile for
re-positioning locomotives within the facility. For performing such duty, the
Claimant was paid a 1.00 allowance. After completing the aforementioned turn
of overtime (which actually began at 11:30 P.m. on August 2, 1978), the Claimant
moved directly to his regular assignment and commenced his regular shift. He was
only allowed to work four (4) hours, at which time he was sent home. According
to the Carrier, the Claimant's performance of work as Hostler Helper placed him
under the control of the "Hours of Service Act" as amended by Public law 91-348
(eff. July 8,
1976).
The Federal Railroad Administration, on may
31,
1977, issued
the following interpretations of the 1976 Amendment:
"...
With the passage of the
1976
amendments, both inside
and outside hostlers are considered to be connected with
the movement of trains. Previously, only outside hostlers
were covered. Any other employee who is actually engaged
in or connected with the movement of any train is also covered,
regardless of his job title."
and
F orm 1
Page 2
Award No. 8681
Docket No. 8570
2-D&RGW-FO-'81
"...
all duty time for a railroad even though otherwise not
subject to the Act must be included when computing total
on-duty time of an individual who performs one or more of the
types of service covered by the act. This is known as the
principle of 'commingled service."'
It was such pronouncement, per the Carrier, that became the basis to conclude
that the Claimant -- filling the duty of Hostler Helper -- was performing
"commingled service" which was "connected with the movement" of trains in the
same manner as the Hostler does. Essentially, the Carrier asserts that a Federal
Statute takes pre-eminence over a provision of a collective bargaining agreement,
particularly where following the latter would be a violation of law. Here, the
Carrier asserts failure on its part to follow the FRA's directive would potentially
subject it to a severe penalty. According to the Organization, the Claimant is
covered by an Agreement that is not subject to the Hours of Service Law. It also
points out that Hostler Helpers
er use are
not ra_erenced in the aforecited
Statute, and that there are no
a''ss
geed Hostler Helper positions at this facility.
The Organization asserts that the Carrier forced the Claimant to suspend work in
order to absorb overtime, thus violating Rule
8
(a) of the Agreement.
While recognizing that this Board is without authority to interpret the Hours
of Service haw, we are compelled to point out that where the Carrier can
require
a laborer or any other classified employee to perform service as a Hostler Helper -for which the allowance of $1.00 is paid, it potentially limits such employees
from achieving overtime pay which otherwise could be worked or more significantly,
as in this case, from achieving their regular pay. The record of this case does
not indicate whether or not the hours worked pre-shift by the Claimant were, in
whole or part, calculated at straight time since the Claimant was not permitted to
work beyond a total of twelve hours; if so, we are compelled to point out that
such an affected employee would be required to "make his time" the hard way. Thus,
while the Board must defer to the FRA on matters pertaining to the application
of the Hours of Service Law and conclude that we are without authority to comment
on the issuance of interpretation to such Statute, we are duly authorized to
conclude that the Carrier may not compel an employee to perform service, as was
done here, which has the ultimate result of denying the opportunity to work and
the attendance compensation for which such employee is entitled under the provisions
of applicable collective bargaining agreements.
A W A R D
Claim is dismissed on its merits due to lack of authority by this Board to
consider such claim. This Board concludes that in the future, the Carrier may not
compel employees covered by the terms of the Agreement to perform duties which has
the result of depriving them of other rights under the Agreement.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
'4C
o emare Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 15th day of April,
1981.