Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12316
SECOND DIVISION Docket No. 12346
92-2-91-2-136
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Brotherhood Railway Carmen/ Division of TCU
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Seaboard Coast
( Line Railroad Company)
STATEMENT OF CLAIM:
1. That the carrier violated Rule 13 of the controlling agreement
when they refused to pay Carman J. Stephens, Jr., lead carman at Tampa,
Florida, the proper rate of pay on January 5, 6, 7, 9, 12, 13, 14, 16, 19, 20,
23, 26 and 30, 1989.
2. That accordingly, the carrier be ordered to compensate Carman
Stephens twelve cents (.124) per hour at the time and one-half rate for eight
(8) hours on each of the thirteen days the agreement was violated, for a total
of $18.72.
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 employes 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.
On February 20, 1989, a Claim was filed on behalf of the Claimant on.
grounds that the Carrier was in violation of Rule 13 of the Agreement. Specific allegation was that the Claimant had been underpaid on 13 different days
in January of that year when he had been called "to work overtime at Yeoman
Yard on second shift." According to the Claim the Claimant had been consistently shorted $0.12 per hour on each shift on those days for a total shortage
of $18.72.
Form 1 Award No. 12316
Page 2 Docket No. 12346
92-2-91-2-136
The Rules at bar states the following, in pertinent part:
"Rule 13
When an employee is required to fill the place of
another employee receiving a higher rate of pay, he
shall receive the higher rate; but if required to fill
temporarily the place of another employee receiving a
lower rate, his rate will not be changed."
In denying the Claim the Carrier states, in effect, that an employee's higher rate is not to be paid, if such employee works on overtime basis,
on a lower rated position. As the Carrier put it:
"In every instance that you claim... (for the Claimant)
he was called to work a position at the overtime rate in
addition to his normal assignment...(and he was) paid
his higher rate of pay for the time he worked the Leadman position and he was paid the time and one half rate
of the position he worked extra when called for
overtime."
The Claimant's regular bid-in assignment was Leading Freight Car
Repairman at Tampa. When called for overtime assignment on the days in
question he worked assignment as Freight Car Repairman, a lower rated position.
Further refinement of the Carrier's Interpretation is found in correspondence by the Carrier to the Organization dated May 1, 1989. There the
Carrier argues that if an employee is called from an overtime list on which an
employee voluntarily placed himself, he is no longer performing work "at the
request of the Carrier" and therefore, is "only entitled to the rate of the
position he is performing service on." Since, therefore, the "requirement"
provision of Rule 13 is not to be applied in these circumstances, an employee
should receive pay only for the position worked. In this case, this was the
rate for the lower paying position of Car Repairman and not Lead Car Repairman.
It is the view of the Board that the Carrier is attempting to circumvent the intent of the language of Rule 13 by its esoteric Interpretation
of this Rule and the distinctions it is making between voluntary and required
work. Under common sets of meanings all positions are filled, whether on
regular or overtime assignment, by supervision because it is supervision who
decides that a position needs to be (or is required to be) filled. If this is
done on overtime basis, the requirement is just shorter in duration because of
workflow, etc. in the particular shop or at the particular location. The requirement to fill any position clearly comes from management. The Board cannot
see that Rule 13 contemplates anything one way or the other about the status
of the employee filling such requirements by management for the simple reason
that this Rule does not address this issue. The Carrier is attempting to read
into this Rule an intent not supported by the language thereof. For the Board
Form 1 Award No. 12316
Page 3 Docket No. 12346
92-2-91-2-136
to agree to such Interpretation would be tantamount to adding to the language
of this Rule which the Board, of course, has no authority to do. The Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy Ver - Executive Secretary
Dated at Chicago, Illinois, this 29th day of April 1992.
1400
CARRIER MEMBERS' DISSENT
TO
SECOND DIVISION AWARD 12316, DOCKET 12346
- (Referee Suntrup)
a
The decision reached by the Majority in Second Division
Award 12316 is palpably erroneous and cannot be accepted as a
precedent.
Section "A" of Rule 49 Wage Scale of the Schedule Agreement
on this property sets forth the agreed-to hourly rates of pay
for mechanics. Section "B" of that rule specifies that a differential "above the rates shown in Section 'A "" will be paid
for acting as lead men. The hourly rate of pay for the mechanic
in this case was $14.064; the differential above that rate for
acting as a lead man was 12 cents per hour. Section "B" makes
clear that a differential is not part of the rate but is a payment above the rate, i.e., in addition to the rate.
The Majority completely ignored Rule 49's specificity (and
the Carrier's argument) relative to payment of differentials.
Not only has this Board rewritten the rules obligating the Carrier to pay the lead Carman differential on other than lead
Carman positions, but it must also pay the differential at the
time and one-half rate. In other words, according to the Majority, the differential is no longer restricted to lead Carmen
positions, it is also applicable to a lead Carman whenever he
works regardless of whether his services are voluntary or involuntary, straight time or overtime.
The Majority in Award 12316 acknowledged that it has no
authority to add language to the agreement under the guise of
CMs' Dissent, Award 12316
Page 2
interpretation, but it did just that.
Instead of construing the agreement as a whole, the
Majority chose to misread Rule 13, which is quoted below:
"When an employee is required to fill the
place of another employee receiving a higher
rate of pay, he shall receive the higher
rate; but if required to fill temporarily the
place of another employee receiving a lower
rate, his rate will not be changed."
Rule 13 refers to rates and does not mention differentials. It
follows, of course, that Rule 13 does not require or even contemplate paying an employee a differential of 12 cents per hour
above his rate when working an overtime assignment to which such
differential does not apply. Rule 49, not Rule 13, is controlling as to payment of differentials. Section "B" of Rule 49
specifically states that an employee assigned temporarily to
fill the place of an employee receiving a differential will be
paid the differential. If the "rate" as contemplated in Rule 13
included differentials, such provision in Rule 49 would be
superfluous.
It is a cardinal rule of contract interpretation to assume
that the parties are capable negotiators who do not add superfluous language to agreement rules and that a specific rule
takes precedence over general rules.
R. . Hicks
M. C. Lesnik
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