NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
"Claim of J. D. Atkin for the difference in pay between straight time rate and time and one-half rate for thirty-five (35) minutes account of operating a track motor car after his regular working hours on January 15, 1936."
STATEMENT OF FACTS.-In their ex parts submission the employes stated the facts as follows:
"Atkin is assigned to signal repair work and is in charge of a track motor car which is used to transport himself, tools, material, and equipment to and from his headquarters.
P097TION OF EMPLOPF9.-The employer contend tbst Mr. Atkin should have been compensated at the rate of time and one-half for the time he performed service of operating a track motor ear 35 minutes beyond his established working period nn Jamtarv 1.5, 19:16. This "retention is haled on and supported by Rules 12 and 16 ef Article 2 of the agreement dated Nov. 1, 1935.
Air. Atkin being in charge of the motor car and its safe operation, and responsible for the tools, equipment, and material thereon, was performing a service as defined in the first paragraph of Rule 12 outside of his regularly established working period.
The second paragraph of this rule recognizes that such service is overtime hours and shall be paid for at the rate of time and one-half. Thus Atkin should have been paid at the rate of time and one-half for the 35 minutes beyond his regular working period that he performed the service of operating the track motor car January 15, 1936.
The employes further contend that paragraph (A) of Rule 16 was intended to and does in fact provide time and one-half for all time beyond the regular working hours while riding on track motor cars. The "Full regular rate" for riding on motor cars provides that riding on track motor cars during the regular working hours will be paid for at the straight time rate and traveling on track motor ears after the regular working hours will be paid for at the full regular overtime rate-the full overtime rate is time and one-half.
POSITION OR CARRCBR~Tlie claimant, J. D. Atkin, is a signalman working with a signal construction gang whose headquarters is a signal camp outfit, from and to which lie goes to engage in work, at various nearby locations. on January 15, 1936, seen of the nine men including the foreman were working at Amass, Pa., nine miles west of Transfer, Pa., where the camp car was located, Upon the completion of work that day some of the men returned to the camp cars on their motor car. On account of waiting for an eastbound freight to pass they were delayed and did not arrive at their camp cars until u`:65 P. Al. or 35 minutes after tile usual quitting time.
OPINION OF BOARD. -111 this claim of J. D. Atkin for the difference inBoth parties to this claim quote the several provisions of Rules 12 and 18 of the agreement between the parties, effective November 1, 1935, as supporting their separate contentions.
Rule 12 is designated as the "Overtime" rule and provides for all service performed outside of regularly established working periods. Rule 16 provides for service performed on assigned road work and paragraph (A) excepts from the payment of the full regular rate and overtime, the time of employes waiting and traveling to and from the point of their assigned work; with the further exception however that fall regular rate will be paid for traveling on track motor cars.
in the proper interpretation of Rule 16, paragraphs (A) and (B), there is a decided difference in the application of these paragraphs. In the first instance, paragraph (A) is assigned to cover a period of time in which the employe is either traveling to or from the Point of his assigned work, and during which no work is done or responsibility assumed. Paragraph (B) however covers a period in which work is actually performed and responsibility is actually assumed and for which time and one-half is paid for all time put in by the employe after the first R hours at the designated point at which the work is performed.
Under the circumstances outlined in this instant case where work is performed and responsibility fa assumed, as in the operation of a motor car, the transporting of other employes, the care of tools and equipment, the responsibility for the proper application of the rules and requirements of safety, and the laying up or putting away of the car, paragraph (B) of Rule 16 would not apply to work performed and responsibility assumed away from the point at which the work is designated; and such overtime as was put hi by file employe involved should be paid tinder the overtime provisions of Rule 12.
Considering tire unreconeiled differences extsth,g between the parties, while under the circumstances involved, the Board is of the opinion that claimant Atkin qctllallv performed the work upon which this claim is based, it is reeom-
mended that the parties reconcile the contradictory statements as to the operation of the motor car and for the responsibilities involved before taking action on the principle on which the award is rendered, insofar as it affects this claimant.
FINDINGS.--The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the carrier and the employe involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That in view of the facts in evidence the employe is entitled to the application of the overtime clause of Rule 12 of the agreement, provided that the contradictory statements as to the operation of the motor car are reconciled in favor of the claimant.
Claim sustained insofar as the principle involved is concerned, but remanded for an adjustment of contradictory statements as outlined in the concluding paragraph of the Opinion of the Board.