NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
DELAWARE, LACKAWANNA & WESTERN RAILROAD
COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers, Delaware, Lackawanna & Western Railroad Company, that Towerman Thomas Cornall, be compensated under the Call Rule of the Telegraphers' Agreement for time consumed by him obeying the Carrier's instructions to attend investigations on March 27 and 31, 1943, concerning accidents for which he was not responsible.
EMPLOYES' STATEMENT OF FACTS: An agreement by and between the parties, bearing effective date of May 1, 1940, is in evidence; copies thereof are on le with the National Railroad Adjustment Board.
Thomas Cornall, claimant in the case, on March 27 and 31, 1943, was assigned to Michigan Avenue Tower, Buffalo, New York, working hours 11:00 P. M. to 7:00 A. M. On each of these dates (March 27 and 31) Mr. Cornall was instructed to attend, and did attend, at 2:00 P. M., investigation in the Superintendent's Office regarding an interlocking plant failure. Mr. Cornall was found not at fault.
POSITION OF EMPLOYES: As indicated in the Employes' Statement of Facts, Towerman Thomas Cornall on March 27 and 31, 1943, was assigned to working hours of 11:00 P. M. to 7:00 A. M. at Michigan Avenue Tower, Buffalo, New York. Mr. Cornall was instructed to attend, and did attend, an investigation at 2:00 P. M. on each date, March 27 and 31, as a witness which might assist the Carrier to determine responsibility for an interlocking plant failure which occurred previous to those dates. Because Mr. Cornall lost that many hours of his own time, on instructions of the Carrier, the Organization, in his behalf, filed claim for payment to him for such of his own time as was lost to him, citing the appropriate rule of the current Telegraphers' Agreement as authority. The payment as claimed was denied by the Carrier, notwithstanding the fact that said Carrier utilized Cornall's off-duty time to further its own interest, laying aside as it were a fundamental principle that the right to instruct or supervise carries with it the obligation to pay for that right.
To give the Board a clear perspective of the facts in the case, correspondence exchanged between the parties is next quoted:
First: The rule under which claim is made is not applicable because no work was performed.
Fourth: No time was lost or expense incurred nor was the claimant deprived of his rest.
Fifth: The claim contemplates a new rule entirely, inconsistent with practices of long standing, not only so far as the Telegraphers' Organization is concerned but applying equally to other groups of employes having the same general rules.
(a) Employes temporarily engaged in business of the Company outside the line of their regular duties, at court or otherwise, will be paid their regular wages and necessary expenses while so engaged, court fees and mileage to be assigned to the Company.
(b) Employes required to attend investigations, will be paid for all time lost if not at fault"
"In the light of the record in this case it is unnecessary to discuss, or choose between, the two lines of decisions. For, Rule 13 of the controlling agreement renders inapplicable the awars relied upon by claimant.
This rule is specific in its provisions for compensation to employes attending court or investigations. In the face of it rules relied upon by claimant can have no bearing on the issue. See Award No. 2132. In attending the investigation claimant suffered no time loss. He claims nothing in the way of expense. His claim is without merit."
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