NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood-
(1) That the Carrier violated the provision of Rule 14 of the agreement in effect by requiring J. C. Durham, J. Harbison, B. McCauley, L. M. McDaniel and I. E. Smith to remain for duty at their headquarters outside of their regularly established working hours for the period August 1 to and including September 24, 1940, with the exception of Saturdays, Sundays and holidays; and
(2) That the claimants be paid at the rate of time and one-half for each hour held on duty in excess of their regularly assigned hours until cancellation of the instructions on September 25, 1940.
EMPLOYES' STATEMENT OF FACTS: The employes named in this claim were employed in B. & B. Gang No. 7 on the Memphis Division during the period involved herein. Their regular assigned daily working hours were from 7:00 A. M. to 4:00 P. M. and they were paid on an hourly basis.
Under date of July 31, 1940, Foreman J. L. Stutts issued instructions to the men employed in B. & B. Gang No. 7 to the effect that July 31 would be the last night that they could go home or leave the town in which their outfit was stationed. Mr. Stutts further informed these men that should any of them fail to comply with his instructions they would be discharged from the service.
The employes made request on Foreman Stutta for permission to drive to their homes. Such permission was denied. Foreman Stutts insisted that the men not leave the outfit after working hours.
The instructions issued on July 31, 1940 remained in effect until they were cancelled on September 25, 1940.
POSITION OF EMPLOYES: Rule 14 (a) of the current agreement governs the hours of service and reads as follows:
It is the contention of the Employes that the Carrier violated the provision of the agreement in requiring B. & B. employes to remain on duty without compensating them for time so held.
When Foreman Stutts, on July 31, issued instructions for the men to remain at their outfit cars, his action constituted an obligation upon the Carrier to pay such employes for all time held outside of their regular bulletin hours.
At the time this case was presented-your letter August 23, 1940 to Division Engineer Smith, this gang housed in outfit cars was working at Earle.
The instructions, be they written or verbal, of the foremen to the members of the gang to notify the foreman when they are leaving their customary place of abode so that they could be found in event of emergencies, is not an unusual requirement of B&B Department employes working in gangs out on the line of road making outfit cars their headquarter point.
The men for whom you are filing claims performed no service, and in the absence of any rule to support such a claim as you have presented on behalf of the employes, same is respectfully declined."
The Employes have not alleged in the handling of this case with the Carrier that any specific rule of the agreement dated July 1, 1938 has been violated by the Management.
The Management contends there is no rule in the agreement dated July 1, 1938 that would support the claim presented by the employes.
POSITION OF CARRIER: That there is no dispute between the Organization and the Management involving the application of any rule of the agreement governing working conditions of employes represented by the Brotherhood of Maintenance of Way Employes.
The Organization has, however, requested that certain employes in this gang be allowed 16 hours overtime pay at the rate of time and one-half under Rule 14 of the agreement dated July 1, 1938. This rule provides that TIME WORKED following and continuous with the regular eight hour work period shall be paid for at the rate of time and one-half until relieved for rest. These employes did not work-they were released from work at completion of the work day, viz: 4:00 P. M. daily; they resumed work at 7:00 A. M. the following day. They performed no work between 4:00 P. M. and 7:00 A. M. but were released from any work-only obligation they had as an employe of the Carrier was to notify the foreman where they could be found in case an emergency arose between quitting time and starting time of the day. This rule or practice applies universally to all employes in B. & B. gangs. There is another rule of the agreement-No. 22-that provides no overtime hours will be worked without authority of a superior officer, except in case of an emergency where advance authority is not obtainable. Again this rule provides for overtime work. It is not applicable to this case as there was no overtime worked and the claimants were not instructed by any superior officer to work.
In the absence of any rule to sustain the Employes' contentions the Management feels that the Employes' claim should be denied.
OPINION OF BOARD: Some of the facts in this claim are not in dispute; while, on the other hand, there is a sharp dispute as to some of the essential facts. There is no doubt Foreman Stotts told his crew on the morning of August 1 1940, that they could not go home after their regular working hours. The employes contend that he told them that if "any man leaves this outfit tonight, he will be discharged." On the other hand, the Carrier contends he told them not to leave unless he gave them permission.
The Board is inclined to believe that the substantial weight of the evidence is with the employes. From the record, the inference is drawn that these employes were free to go home after their regular working hours before this date. The question arises, why should the change be made? The Carrier contends it was made in order that these men could be reached in case of an emergency. If this contention be true, the men could not have been reached on Sunday, holidays, or on any date prior to August 1, 1940. The fact is undisputed that 2672-8 534
these men could have been reached by phone at their homes in case an emergency arose. Moreover, the evidence shows that the lady who ran the boarding car gave the foreman his board, and it can be readily inferred that he was to use his power to see that all the men on the crew would board with her.
There is nothing in the rules which says men may be required to hold themselves ready for a call in emergencies. If such a requirement was intended, it would of necessity be included in the rules.
Eight hours, exclusive of meal period, constituted a day's work. [Rule 14 (a).] After that period, the men were free to go as they pleased.
The Carrier relies upon Rule 22 which provides that no overtime will be worked without authority of a superior officer. The Board holds there is nothing in this rule which would deny these employes their claim. They were held after their regular working hours by their superior officer, Foreman Stuns.
It is true that these claimants were not to work in excess of eight hours. This Board, however, has found that the Carrier has held these claimants in readiness for work in excess of the regular eight hours. This Division has, on various occasions, and again quotes with approval the following statement from the Report of the Emergency Board created by the President of the United States on February 8, 1937:
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 employes involved in this dispute are respectively carrier and employes 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