NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(a) The Wabash Railroad Company, hereinafter referred to as the Carrier, acted contrary to the intent of Article 8 (a) of the Agreement effective May 1, 1946, as revised effective September 1, 1949, when it failed and declined to compensate Train Dispatcher J. L. O'Connor by a determination of the daily rate of the position filled by multiplying the regular monthly rate by 12 and dividing the result by 261, in accordance with the provisions of Article 8 (a), for relief service performed in relieving the regularly appointed chief train dispatcher in its Moberly, Missouri, train dispatching office, on the specific dates herein specified:
"(a) This agreement shall govern the hours of service and working conditions of train dispatchers.
The above quoted rule, even when considered alone and without reference to the specific provisions of Article 1, paragraph (a), of the Agreement between the parties, obviously has no relationship to, or bearing upon, the rates of pay applicable to any individuals occupying positions of Chief rain Dispatcher. The provisions of that rule had no more application to the work performed by Mr. O'Connor on the dates in question than had he worked on those dates in some outside industry.
In paragraph (b) of the Association's ex-parte Statement of Claim, it is alleged:
The compensation allowed Mr. O'Connor for work performed on the position of Chief Train Dispatcher on the dates in question was not based on Articles 8, paragraph (a), of the Agreement effective May 1, 1946. The position of Chief Train Dispatcher at Moberly is not subject to any of the rules of the Agreement between the parties. The rate paid to Mr. O'Connor for the service performed on those dates was a daily rate arrived at by dividing the annual salary applicable to positions of excepted Chief Train Dispatcher by the number of days the occupants of such positions are required to work in a calendar year.
The contentions of the Association are wholly without foundation under the rules of the Agreement between the parties and should be dismissed and the claim denied.
The Carrier affirmatively states that the substance of all matters referred to herein has been the subject of correspondence or discussion in conference between the representatives of the parties hereto and made a part of the particular question in dispute.
OPINION OF BOARD: The effective Agreement between the parties was revised on September 1, 1949.
Claim is here made by J. L. O'Connor for the difference in pay that he received and the sum allegedly due him under Rule 8(a) of the Agreement. It is asserted that the daily rate of compensation should have been based upon 1/261 of the annual rate rather than 1/313, on dates when relief service was performed as Chief Train Dispatcher.
The Carrier asserts that Rule 1 (a) specifically exempts the position of Chief Train Dispatcher from the coverage of the Agreement and that this Board is without jurisdiction to determine the rate of pay for an "official position" and that the rates of pay designated in Rule 8 (a) are not applicable to individuals occupying the position of Chief Train Dispatcher.
It is true that the position of Chief Train Dispatcher is an "exempted position" in so far as Rule 1 (a) of the effective Agreement concerns the regular, duly designated (by the Carrier) holder of the position. This individual, once designated as the occupant of the postion by the Carrier may be removed by it at will, without regard to the effective Agreement. However, Article 3 (g) of said Agreement specifically places the function of relieving Chief Train Dispatchers within the scope of the duties of Train Dispatchers.
In short, the position of Chief Train Dispatcher, when occupied by the individual designated by the Carrier, is an "exempted position" but the duty of performing relief service has been contracted away. (Article 3 (g) thus 5716-6 173
when the duties of the Chief Train Dispatcher are performed by a Train Dispatcher, neither the position, or the occupant are "exempt". Under these conditions each, or both, that is, the occupant and the position, come within the Scope of the Agreement properly compensable under Rule 8 (a) of the Agreement.
We find that under the facts existent herein, the "position", as such, comes within the Scope of Rule 1 (a).
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
The Opinion correctly holds that the position of Chief Train Dispatcher is an "excepted position", but in the same breath holds that a train dispatcher, while occupying such position temporarily, is governed by the provisions of Rule 8 (a). Irrespective of previous awards under different agreements, the effective Agreement before us in the instant dispute does not warrant any such interpretation. Rule 8 (a) does nothing more than establish the rate of pay 5716-7 174
Article 3 (g) referred to does nothing more than grant train dispatchers the right to provide relief on Chief Train Dispatcher positions. Article 8 (a) sets forth the specific daily rate of pay for train dispatchers and does not mention or refer to the rate of pay for Chief Train Dispatchers' positions.
Under the Agreement here involved and the facts presented, there is no justification for holding that only the regular incumbent of a Chief Train Dispatcher's position is excepted and consequently the Award is in error.