STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:
(a) The Missouri Pacific Railway Company violated the intent of Article 3(a) of the Agreement, effective August 1, 1945; entered into between this Carrier and the American Train Dispatchers Association, when the Carrier required Train Dispatcher A. E. Upson of the Pueblo, Colorado, office to perform service as Chief Train Dispatcher on November 19, 1945, the latter being the rest day assigned to Mr. Upson's regular position, and that
(b) The Carrier shall now compensate Train Dispatcher Upson at the rate of time and one-half, of the rate of the position, in which he performed service on'November 19, 1945, as is required by Article 3(a) above mentioned, instead of the pro rata compensation he was paid for that day.
EMPLOYES' STATEMENT OF FACTS: An agreement on rules governing hours of service, compensation and working conditions was entered into between the parties to this dispute, effective August 1, 1945. Said agreement was in effect on the date this dispute arose. Article 3, Section (a) thereof reads:
Mr. A. E. Upson was, at the time this claim arose, employed by this Carrier as a regularly assigned train dispatcher in its Pueblo, Colorado, office. His assigned hours were from 8:00 A.M. to 4:00 P.M. each day except Mondays. Mondays were the rest days assigned to his regular position.
The Carrier instructed Mr. Upson to, and he did perform service as chief train dispatcher (titled division trainmaster on this property) on Monday, November 19, 1945, which was the rest day for that week assigned to Mr. Upson's regular position, and for service on that day the Carrier compensated Mr. Upson at the pro rata rate instead of at the time and one-half rate of the position in which he performed service on that day.
American Train Dispatchers Association
Missouri Pacific Railroad
Coffeyville, Kansas
Re: Claim Dispatcher A. E. Upson
Pueblo, Colorado.
The claim is based on Article 3 (a) of the Agreement in force, as follows:
The Carrier resists the claim, declaring that Rule 1, "Rest Day, Vacation and Relief", appearing in the Appendix to the Agreement governs. This rule provides:
This rule is in accord with the letter of Agreement of August 7, 1945, which covers the subject matter contained in the rule and is the result of an Emergency Board's action.
The Agreement covers Chief Dispatchers (now titled Division Trainmasters on this property) only to the extent of the rules covered in the Appendix. Under the foregoing Rule 1 of the Appendix Division Trainmaster R. E. Allen was given his rest days, Sunday, November 18 and Monday, November 19, 1945. On these days he was relieved by Claimant.
The Carrier argues: That Rule 1 of the Appendix to the Agreement accords to Train Dispatchers the right to relieve Division Trainmasters during their vacations and on their rest days and this provision gives to the Trick Dispatchers as a class, the right to certain relief work for which they are paid at the rate of the position which they relieve; that all Division Trainmasters on this property are paid the same salary and no punitive rate for the position Division Trainmaster is existent; that the letter of understanding, dated August 7, 1945, specifies the daily rate to be paid individuals relieving Division Trainmasters on their rest days and vacation. Therefore, the Claimant was paid in accordance with Rule 1 contained in the Appendix to the Agreement. Exclusive of the Appendix to the Agreement he would have been paid at the rate of time and one-half for his services on his rest day. When he stepped outside of the position covered by all the rules of the Agreement he became subject, on a position covered by Rule 1 of the Appendix to the Agreement or any letter agreement pertinent thereto. That the purpose of Rule 1, Appendix to the Agreement, was to eliminate any disputes as to the rate of pay which should be applied to a Trick Dispatcher.
The awards cited by the Claimant do not deal with the exact situation in the instant case, due to Rule 1 of the Appendix to the Agreement, which rule is peculiar to this Carrier's system. However, the cited awards are pertinent 3344-5 282
to the following effect: The Claimant did not become Chief Dispatcher by virtue of the fact that he performed service on that position on the day in question, and he relinquished none of his rights and privileges under the rules applicable to his regular assignment by the performance of such service.
After a careful consideration of the record we conclude that Rule 1, of the Appendix to the Agreement and the letter of understanding dated August 7, 1945 did not, nor intend to abrogate Rule 3 (a) of the Agreement as it affects the rights of the Claimant with reference to rate of pay as contained therein, when he would be required to work on his regular rest day. Rule 1 of the Appendix to the Agreement does determine the rate of pay for an employe selected from the Dispatchers' roster to temporarily fill the Division Trainmaster's position on his rest days or vacation period; such is the purpose of the rule, and that it accomplishes. However, should such a selected employe from the Dispatchers' roster be required to work as Division Trainmaster on his rest day, then for that day he is entitled, under Rule 3 (a) of the Agreement to be paid time and one-half, based on the rate of pay of the Division Trainmaster's position which he is temporarily assigned to and filling; on all other days during such assignment he is entitled to receive the rate of pay allotted to the position.
It is apparent Rule 1, of the Appendix to the Agreement nor the letter of understanding, does not change or modify Rule 3 (a) of the Agreement under the circumstances here presented.
With reference to Section (a) of the claim, there is no violation of the Agreement on the part of the Carrier in requiring the Claimant to perform service in the capacity of Division Trainmaster on the day in question.
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, 1943;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the Carrier violated the Agreement as alleged in Section (a) of the claim.