Collins was allowed a minimum day of S hours at his regular dispatcher's rate for the time he lost from his regular assignment, in pursuance of the terms of Article VII, Section 10 of the Dispatchers' Agreement; and, (2) the overtime rules could not possibly be involved in the instant dispute, for the reason that the Employes are only contending that Mr. Collins is entitled to the payment of the 7 hours and 45 minutes he spent in traveling to and from Belen, New Mexico at pro rata rates, not overtime rates.
Moreover, the matter of compensating Mr. Collins for attending the investigation at Belen as a witness for and at the request of the Company on June 27, 1952 is subject to Article VII, Section 10 of the Dispatchers' Agreement, which is, as stated before, a special rule dealing with the attendance of dispatchers at investigations. The Third Division has consistently recognized and held that special rules, such as Article VII, Section 10, take precedence and prevail over general rules, such as basic day and overtime rules, leaving the latter to operate in a field not covered by the former. See Third .Division Awards 4496, 5636 and others.
The burden of proof of an agreement violation in the instant dispute is upon the employes and their representatives, who must show that Article VII, Section 10, requires the payment of the 7 hours and 45 minutes time the claimant, Mr. Collins, spent in traveling to and from Belen, New Mexico on June 27, 1952. The Employes cannot make such a showing and a sustaining award in the instant dispute would have the effect of amending or revising the Agreement rules, by writing a travel time rule into the Agreement, which the Employes had requested but were unable to obtain in the negotiations leading up to the adoption of the Dispatchers' Agreement, effective September 1, 1949.
In conclusion, the Carrier respectfully asserts that the instant claim is entirely without support under the Agreement rules and should, for the reasons expressed herein, be denied in its entirety.
All that is contained herein is either known or available to the Employes and their representatives.
OPINION OF BOARD: This claim must be sustained. There is nothing that needs to be added to what we said in Award 4569.
During the presentation the Carrier laid stress on the fact that the employe was not used on his rest day, and argued that this case should be distinguished and denied for that reason. However, that issue was raised and answered in Award 2223 wherein we said "We think the time has come when we should say that where the employe is not himself involved in a matter being investigated, and he is called by the Carrier, in its own interest, to attend an investigation, he should be paid, whether we call what he does 'work' or 'services,' and whether he is called on his rest day or otherwise is not controlling. * * * (Emphasis supplied.)
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
We have two lines of awards, one holding correctly that where there is no rule specifically providing for the allowance of any form of compensation for attending investigations, this Board is without authority to order the payment of any compensation; the other holding erroneously that even though there is no such rule, the use of an employe's time places a "duty" upon the employer to pay for that time in serving "the justice of the Employes' position."
Of the two, the second or one-eyed justice theory seems to have found favor with those who wish to disregard the fact that this Board is confined to the function of rule interpretation.
The referee here relies primarily upon Award 2223. That award leads into the second theory. But it commented upon an earlier one holding in line with the first theory, saying that there "the holding was that the Agreement did not provide for pay for special service such as this, and that the matter was one for negotiation." That was, of course, proper, sound, and functionally appropriate for this Board. But the referee in Award 2223, with whom the one in the instant case clearly agrees, went on to say "It will be noted that there was no holding that he was not entitled to pay for services performed." This is where philosophy deranges interpretation for if this Board should be of the opinion that an employe is "entitled to pay" for attending an investigation, it still cannot effectively order any payment unless it is provided for by rule.
This award reiterates the naked proposition in 2223 that "We think the time has come when we should say that where the employe . . is called by the Carrier in its own interest to attend an investigation, he should be paid
" On the contrary, though, we think the time has certainly come when this Board should cease rambling around in the realm of negotiation, creating "duty" without the parenthood of contract. We have no right to formulate a rule. Whether an employe "should be paid" is peculiar to the field of negotiation.
In the instant case there is a rule clearly providing that "Train dispatchers acting as witnesses in investigations for and at the request of the Company will suffer no deduction in pay for actual time lost from regular assignments by reason thereof." The claimant dispatcher was absent from his regular assignment for one day. He was paid one day's pay by the Carrier in fulfillment of its indemnity to him under the rule and no referee or Board can lawfully order the payment of one cent more. If there is an equitable basis for compensation for travel time in connection with attendance at investigations, that should be permitted to ripen into a rule between the parties before it can be entertained by this tribunal.
Finally, it is a matter of record in this case that the Employes sought to negotiate just such a rule so that travel time would be paid in these circum- 6679_14 1041