THE ATCHISON, TOPEKA AND SANTA FE
RAILWAY COMPANY
(Western Lines)
STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:
(a) The Atchison, Topeka and Santa Fe Railway Company, hereinafter referred to as "the Carrier", acted contrary to the provisions of Article 1II Sections 1 and 2, of the currently effective Agreement between the parties to this dispute when, it compensated E. J. Barnes at the pro rata or straighttime rate instead of he time and one-half rate for overtime service performed on February 7, 1952, in its Dodge City, Kansas office.
(b) The Carrier shall now pay to E. J. Barnes the difference between the straight-time rate of the Chief Train Dispatcher and the time and onehalf rate required by the Agreement rules for service performed by him in excess of eight (8) hours on February 7 1952 by reason of being required to work as Chief Dispatcher immediately following his tour of duty as Assistant Chief Dispatcher.
EMPLOYES' STATEMENT OF FACTS: An agreement on rules governing compensation, hours of service and working conditions, dated September 1, 1949, between the parties to this dispute, and applicable to the claimant in this case, was in effect at the time this dispute arose. A copy of that agreement is on file with this Board and is, by this reference, made a part of this submission as though fully incorporated herein.
In the above referred to agreement, Article III-HOURS OF SERVICE, OVERTIME AND CALLS, Sections 1 and 2 thereof read as follows:
In each of the above instances, Dispatcher Hamic was paid one day at the pro rata Assistant Chief Dispatcher's daily rate for service as such and, in addition thereto, was allowed one day at the pro rata daily rate of the Chief Dispatcher position on which used.
The factual situation in each of the above referred to instances was identical to that involved in the instant dispute. In each instance, the same as in the instant dispute, the Assistant Chief Dispatcher protected the Chief Dispatcher position continuous with and after completing his regular eight (3) hour assignment as Assistant Chief Dispatcher and performed sixteen (16) consecutive hours service by reason thereof. In none of the instances referred to above was any complaint or claim received from either the Employes or their representatives that the Assistant Chief Dispatchers, referred to, should have been paid time and one-half for the service performed on the position of Chief Dispatcher; all of which should prove conclusively that the complainant Organization's representatives are, through the medium of the claim in the instant dispute, attempting to advance an interpretation of the Agreement rules which the Employes and their representatives have previously recognized could not be supported under the Agreement rules in circumstances identical to those existing in the instant dispute. While the language of the Agreement rules in effect between the parties hereto is clear and unambiguous and expressly requires a denial of the Employes' claim, the Third Division has, in instances where there was a question as to the meaning and intent of the Agreement rules, consistently recognized and held that the conduct of the parties to an Agreement is often as expressive of intention as the written language of the rules. See Third Division Awards 2436, 3603, 4104, 4464, 5079, 6076 and many others.
In conclusion, the Carrier respectfully reasserts that the instant claim is entirely without support under the Agreement rules in effect between the parties hereto and should, for the reasons set forth herein, be denied in its entirety.
The Carrier is uninformed as to the arguments which the Organization will advance in its ex parts submission and accordingly reserves the right to submit such additional facts, evidence and argument as it may conclude is necessary in reply to the Organization's ex parts submission and any subsequent oral argument or briefs presented by the complainant Organization in the instant dispute.
All that is contained herein has been both known and available to the Employes and their representatives.
OPINION OF BOARD: The rules of the current Agreement relied upon by both parties to this dispute are discussed at some length in the record and awards of this Division are cited in support of the position taken. We deem no useful purpose would be served in a recitation of the arguments 6989-16 1337
advanced in support of the interpretation of rules cited, as applied to the facts herein, as this has been done in a complete and thorough manner in the record.
Based upon the facts and circumstances existing herein, and without in any way establishing a precedent, we find no basis for a ststaining award.
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