Award No. 3134
Docket No. TE-3103
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Luther W. Youngdahl, Referee
PARTIES TO DISPUTE:
THE ORDER OF RAILROAD TELEGRAPHERS
THE DELAWARE, LACKAWANNA & WESTERN
RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the General Committee of The Order
of Railroad Telegraphers on the Delaware, Lackawanna & Western Railroad
Company that, in accordance with the provisions of Rule 15(a), L. E. Popeck,
regularly assigned to the 2nd trick (4:00 P. M. to 12:00 o'clock Midnight)
operator-clerk position at Elmira, New York, Passenger Station, be allowed:
(a) $1.00 each day, December 2, 3, 4, 5 and 6, 1943 on which days
he was required to vacate his regular position to perform emer
gency relief work at Elmira Yard;
(b) Travel time of 15 minutes for each the initial and final trip between the location of regular assignment to the location of the
emergency relief assignment; and
(c) Eight hours' pay at the rate of his regular assignment December 1, 1943, a day he was required to lose account transferring
from Elmira Passenger Station (4:00 P. M. to 12:00 o'clock
Midnight) to Elmira Yard (12:00 o'clock Midnight to 8:00
A. M.)
EMPLOYES' STATEMENT OF FACTS:
An agreement bearing effective
date of May 1, 1940, by and between the parties is in evidence; copies thereof
are on file with the National Railroad Adjustment Board.
L. E. Popeck, regularly assigned operator-clerk, 4:00 P. M. to 12 o'clock
Midnight, at Elmira Passenger Station, who occupied that position November
30, 1943, was required, effective December 2, 1943, to perform emergency relief work at Elmira Yard 12 o'clock Midnight to 8:00 A. M., and continued
thereat to and including December 6, 1943; he was notified and did return to
his regular position at Elmira Passenger Station 4:00 P. M. December 7, 1943.
Mr. Popeck lost one day's pay December 1, 1943 account of the transfer
from a 4:00 P. M. to 12 o'clock Midnight position to a 12 o'clock Midnight to
8:00 A. M. position.
The Telegraphers' Agreement hereinbefore referred to lists at page 24:
Elmira Passenger Station First Trick 74¢ per hour
Second Trick 701' per hour
Third Trick 70A per hour
Elmira Yard First Trick 710 per hour
Second Trick 741! per hour
Third Trick 74c per hour
12401
3134-6
245
Rule 22 reads as follows:
"Employes may be permitted to
change positions temporarily not P.pck worked Elmira Tower
to exceed ninety days in any one December 1, 2, 3, 5 and 6
calendar year but in all cases the
approval of the superintendent
and the local chairman will be The Local Chairman approved as
required. well as the Superintendent
It is understood that such To sustain the claim would ob
changes will in no case result in
To
cause "additional expense
Company." causing additional expense to the to the Company."
It will be noted that Rule 22 is a specific rule, and specific rules control
aver general rules.
In regard to Item (c), Claim of Employes, the Statement of Facts clearly
shows L. E. Popeck lost no time on December 1, 1943 as claimed.
Carrier contends claim should be denied for the following reasons:
(1) Rule 15 (a) has no application in view of agreement between
Superintendent White and Local Chairman West Rule 22
governs.
(2) The claimant L. E. Popeck lost no time on December 1, 1943.
(3) Popeck had no extraordinary cost of personal maintenance and
sustained no travel expenses under the facts of this case (See
Award 2604).
(4) Award 2843 is not controlling since "precedents must always
be weighed in the light of thg facts." (See Award 2670). Moreover, The Board should reconsider and over-rule its decision
in Award 2843, which was erroneous. There should be no hesitation about over-ruling an erroneous decision. (See Award
9673-First Division).
(5) There is no proof that the Organization was authorized by the
employe to handle the purported claim on the property.
(6) There is no proof that the employe authorized the Organization
to take the purported claim to the Board.
(7) There is no proof that the employe was given notice of hearing
by the Board, that he waived such notice, and waived appearance at said Hearing.
(8) The Board lacks jurisdiction to make a -legal and binding
Award unless the conditions specified in points 5, 6 and 7 are
satisfied.
E. J. cB E. V.
Burley,
U. S. Supreme Court
#160-October Term 1944
Decided June 11, 1945
OPINION OF BOARD:
This is a claim for eight hours pay, travel time,
and $1.00 a day for each day December 2 to 6, 1943, on account of Claimant
being required to vacate his regular position to perform emergency relief work
at Elmira Yard. Although eight hours pay claimed to have been lost is
stated in (c) of the claim to be on December 1, 1943, a joint check of the
parties indicates that it was on November 30, 1943.
Rules 15 (a) and 23 are applicable here and read as follows:
"Rule 15 (&)-Employes holding temporary or regular assign-
ments will not be required to do relief work except in case of
3134-7
246
emergency. When they are required to do relief work at any office .
other than the one to which assigned, they will be paid the rates of
the position they fill, but not less than their regular rates and shall
be paid straight time on the minute basis at the rate of the higher
paid position while traveling to and from temporary assignment, in
no case to exceed (8) hours pay. In addition to this they shall be
reimbursed for any time lost in making the change, also receive one
dollar ($1.00) per day for expenses."
"Rule 23-Regularly assigned employes will receive one day's
pay within each twenty-four (24) hour period according to location
occupied or to which entitled, if ready for service and not used, or
if required on duty less than the required minimum number of hours
as per location, except on Sundays and holidays."
Carrier's contention that Organization agreed that employe might be
used at Elmira Tower is not sustained by the record. Further, we do not
agree with Carrier that because the place where the relief work was performed was in the same city as was the station where employe held his
regular assignment, that employe is not entitled to travel time or the
$1.00 allowance There is nothing in Rule 15 (a) indicating that its
provisions are not to apply when the relief assignment is in the same city.
As we have previously stated, the $1.00 per day is an arbitrary allowance,
regardless of the actual expenses incurred in any one case. Awards 2604 and
2843 are controlling here.
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
That Carrier violated Agreement.
AWARD
Claim sustained with the correction as to (c) of the claim, changing
the day from December 1, 1943 to November 30, 1943.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: H. A. Johnson
Secretary
Dated at Chicago, Illinois, this 1st day of March, 1946.