Form 1 NATIONAL RAIIROAD
ADJUSTMENT
BOARD Award
No.
8987
SECOND DIVISION
Docket No. 8461
2-CSS8cSB-CM-'82
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
~ Chicago, South Shore and South Bend Railroad Company
Dispute: Claim of Employes:
1. The Chicago, South Shore and South Bend Railroad ordered the following
employes, A. Baker, S. Baron, J. Gardner, R. Humelsheim, R. Keppen,
R. Krassow, M. Kehoe, J. Lamm, R. Scissom, R. Van Ooteghem and L.
Wanke, to attend one of two classes held on May 11,
1978,
on their
off duty time. The employes attended the classes and the Carrier has
refused to compensate said employes for this service in violation
of Agreement Rules
3, 5
and
39.
2. The above named employes, hereinaiP - referred to as Claimants, are
requesting four (4) hours pay each at the pro rata rate pay for the
time they were required to be in attendance at the Book of Rules
Classes held on May 11,
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.
Claimants were directed to attend a "Book of Rules Examination" on may 11,
1978,
outside of their regularly assigned working hours. They did so, and they
did not receive compensation for the time involved.
The Organization argues that the Claimants should be paid for the time
involved, referring particularly to Rule
3,
in reference to "work performed"
in excess of forty hours in any work week, and Rule
5,
which reads in relevant
part as follows:
"Overtime Outside Bulletined Hours
Employes called or required to report for work and reporting will
be allowed a minimum of four (4) hours for two (2) hours and
forty (40) minutes or less, and will be required to render only
such service as called for ..."
`'~_:~ 1 Award No.
8~8
7'
gage `' Docket No. &161
2-CSS&SB-CM-'82
Reference is also made to Rule
39
which states that, "All reports required
by the company are to be made during working hours."
The Board finds that the taking of a rules book examination is substantially
different from making a "report", and thus Rule is not supportive.
The question remains as to whether the rules book examination is necessarily
considered "work" as defined in
Rules
3 and
5.
The Board finds no basis to
support this view.
The
Carrier points out that in the past such examinations
have been given outside of normally assigned hours and without compensation to
the employes; the Organization argues that there have been instances when
employes were paid but offers no specifics. To resolve the possible ambiguity
of the definition of "work", the unrefuted contention of the Carrier as to
established practice must be given weight.
Further, this issue has been the subject of numerous previous awards.
Tndicative of such awards is Third Division Award No. 20323 (Sickles) which
states in part:
"In Third Division Award 10808 (Moore), it was noted that there
are exceptions to time consumed by an employee when directed
by the Carrier as being considered 'work' or 'service'. One of
those exceptions was held to be where the circumstance contains
a mutuality of interest. The Award concluded that, 'Awards
have held that classes on operating rules and safety rules are
such exceptions.' See also Award 11010 (Dolnick), 15630
(McGovern), Fourth Division Awards 2385 and 2390 (Seidenberg),
7631 (Smith), 11567 (Sempliner) and Public Law Board No. 194,
Awards 24 and 25.
The Board does not mean to suggest that the issue in dispute
is so clear of resolution that reasonable minds might not
differ in determining the appropriate application of the
Agreement to the facts presented in this dispute. Nevertheless, numerous Awards rendered by a number of Referees
have consistently determined that mandatory attendance at
classes such as those in issue in this dispute, do not
constitute "work, time or service" so as to require
compensation under the various Agreements. Because of the
consistent holdings of prior Referees, we are reluctant to
overturn the multitude of Awards."
The ascertaining that employes are knowledgeable of rules servers
at
least
two purposes: it assures the Carrier of having competent and trained employes,
and it assures the employe that he is prepared to perform his duties as
required. The "mutuality of interest" is clear.
There is no rule in this instance covering time spent in rules examination;,
the Board having found that Rule
39
is not applicable. Established practice
and the testing of the same question in numerous other awards leaves no basis
for the Board to find such payment is required. Finally, the issue here is
Form 1
Page
3
Award No.
8987
Docket No. 8461
2-CSS&SB-CM-`82
auite different from that covered in Award No. 8W-and Award No'
9%
in which the time spent in training was in place of regul;rly assigned
work in which the employes would otherwise have been engaged.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
emarie Branch - Administrative Assisant
Dated t
rat Chicago, Illinois, this 17th day of March, 1982.