NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
MISSOURI PACIFIC RAILROAD COMPANY
(Guy A. Thompson, Trustee)
STATEMENT OF CLAIM: Claim of the General Committee of The order of Railroad Telegraphers on Missouri Pacific Railroad, that A. S. Bryan, regularly assigned second trick telegrapher-towerman at Grand Avenue, St. Louis, Mo., with the assigned hours 4:00 p.m. to 12:00 o'clock midnight, who was required by the carrier to attend an investigation 9:30 a.m. to 1:30 p .m. on Monday, March 27, 1944, solely as a carrier witness, shall be paid for these hours of service under "NOTIFIED OR CALLED" Rule 10 (c) of the Telegraphers' agreement.
EMPLOYES' STATEMENT OF FACTS: An agreement, bearing date June 1, 1942, as to rates of pay and rules of working conditions is in effect between the parties to this dispute.
A. S. 'Bryan was on duty on March 16, 1944 as Telegrapher-Towerman at Grand Avenue Tower when Missouri Pacific Train Number 17 was derailed at this tower.
On March 27, 1944, the Carrier conducted an investigation into the cause of the derailment, commencing 9:30 a.m. and ending at 1:30 p.m. The Carrier instructed Towerman Bryan to attend this investigation solely as a carrier witness, and he was present during these hours of the investigation. For this service, towerman filed a time slip for (1 call and two hours overtime) or four hours at time and one-half under the provisions of Rule 10-(c) of Telegrapher's Agreement.
POSITION OF EMPLOYES: This dispute and claim arises from and involves the application of the provisions of "OVERTIME OR CALLED" Rule 10-C of the telegraphers' agreement between the carrier and the organization, which reads as follows:
"NOTIFIED OR CALLED: Employes notified or called to perform work not continuous with the ending of their regular work period will be allowed a minimum of three hours for two hours work or less, and if held on duty in excess of two hours, time and one-half will be allowed on the minute basis, except that the bulletined hours of service of telegraphers at offices where one shift only is employed, may be established to permit the meeting or starting of regular scheduled trains on their time-table not more than one hour before the com-
OPINION OF BOARD: The claimant, whose hours of work were from 4 p.m. to midnight, was required by the carrier to attend an investigation from 9:30 a.m. to 1:30 p.m. on March 27, 1944. He submits a claim for four hours' pay under the provisions of Rule 10 (c) which reads as follows:
There is no rule of the agreement providing for pay for attendance by an employe at an investigation instituted by the carrier. Rule 6 provides for compensation and reimbursement for expenses when an employe at the request of the carrier attends court or appears as a witness for the carrier in court proceedings. Both sides, however, agree that this rule has no application here. To come within ule 10 (c) the attendance by this employe must be regarded as "work" as that word is used in the rule.
This question has been discussed in a number of awards, which, though not uniform, have fairly consistently held that attendance at an investigation is not "wor" as that work is used in the rules. Awards 134, 1032, 1816, 2132, 2508, 2512.
The parties could have specifically provided by a special rule for payment for time spent while on such duty. The fact that there is no such rule may well indicate that they were unable to agree on this problem. Under such circumstances this Board is without power to intervene. We cannot write a rule on the failure of the parties to agree, nor should we by a forced construction apply another rule in a way in which they did not intend.
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; 3230-to 216