Dunn who attended the investigation on his rest day was also allowed eight hours straight time, although he lost no time, and by a strict interpretation of the Agreement was entitled to no compensation. The payment of eight hours to Dispatcher Dunn was in error, and should not be considered as a waiver of Carrier's position as to compensation provided for by the Agreement.
The attendance of an employe at an investigation where he is under charges is a matter that has been many times passed on by the Third Division, which has consistently held that when an employe is personally concerned in the case under investigation, mutuality of interest exists, and such employe is not rendering service to the Carrier. The fact that the claimants had their representative present to defend them at the investigation, is evidence that they considered themselves to be directly involved in the case.
In Award 4909, Order of Railroad Telegraphers, New York Central System, the Board denied the claim of a Tower Director called to appear at an investigation to fix responsibility for motor car running through a switch. The employe was not found guilty but the Board held the Carrier had a right to inquire as to whether his dereliction or that of some other employes was the proximate or concurring cause of the accident, and denied the claim. In Award 5376, Dispatchers-Virginian Railway, a dispatcher, together with eleven other employes, was charged with responsibility in movement of two colliding trains. The Board denied claim for compensation, and found in part:
In Award 5823, Order of Railroad Telegraphers-B&O RR, the Board denied the claim of a telegraph operator required to attend an investigation to fix responsibility for a rule violation, and found, in part:
The circumstances as above outlined, indicate that the Articles cited by the employes are not applicable. However, nothing in the cited rules makes provision for payment to claimants on a continuous basis when called away from headquarters, even if they had been in Company's service. Article 7(b) provides that employes will be allowed regular salary plus necessary expenses. Nothing in the rule makes any provision for travel time.
This claim has been handled on the property in the usual manner up to the Vice President & General Manager, the highest officer designated to handle claims and grievances, and has been declined.
All data contained herein have in substance been presented to the employes and are a part of the instant dispute.
OPINION OF BOARD: The facts are not in dispute. The only question presented for our consideration is an interpretation of rules cited on behalf of the parties in support of the positions taken.
In brief, Claimants attended an investigation and no fault was found with any of them as to responsibility for the matter being investigated. At 7029-8 187
the time in question Timmons held regular assignment in Carrier's Battle Creek, Michigan dispatching office as Trick Dispatcher, 1:00 A. M. to 9:00 A. M. Dunn and O'Connor held regular assignment of Relief Dispatcher in Carrier's Durand, Michigan office. WednesdayNovember 11 was one of Dunn's regular assigned rest days and O'Connor's assignment was 8:00 A. M. to 4:00 P. M. Both Timmons and O'Connor were held off their regular assignment on November 11. It was necessary for Timmons to leave Battle Creek at 4:05 A. M., November 11, and he returned to Battle Creek at 3:55 A. M., November 12, a lapse of 23 hours and 50 minutes. Dunn and O'Conner left Durand at 6:10 A. M., November 11 and returned to Durand at 12:45 A. M., November 12, a lapse of 18 hours and 35 minutes.
Carrier paid Timmons a day's pay account held off his assignment, and actual expenses incurred; it paid Dunn total elapsed time, 18 hours and 35 minutes, at overtime rate, this being his regularly assigned rest day, and actual expense incurred; and O'Connor was paid total elapsed time, IS hours and 35 minutes, eight ours pro rata rate for time held off his assignment, and 10 hours and 35 minutes at overtime rate, plus actual expenses incurred. However, at a later date, the Carrier deducted the 10 hours and 35 minutes at overtime rate previously paid Dunn and O'Connor, thus making actual payment to Dunn for eight hours at time and one-haf rate and O'Connor eight hours at pro rata rate.
The claim asks pay to Timmons for 15 hours and 50 minutes and to Dunn and O'Connor for 10 hours and 35 minutes, each at the rate of time and one-half.
Petitioners claim that Carrier is basing its denial on Article 5(e) and on the mutuality of interest theory erred. Also on the proposition that time spent by Claimants was not in the performance of the service. That Article 5(e) has no application or effect in this case as no one here was removed from the position held, and contend that Articles 2 and 3 do provide basis of pay for service rendered in excess of eight hours, or on rest days, and that the time claimed was in performing a service for the Carrier. Cited are Articles 2(b) and 3(a)2; also Awards 3462, 3966, 4569, 4790, 6679, 6736 and 6846. And it is further alleged that Carrier has previously paid for service as here claimed.
Respondent Carrier contends that this is a discipline case and the investigation was held to determine the responsibility for poor performance of duty of a train crew, citing the notice given of the purpose of the investigation, and that under the facts herein there was mutuality of interest, also that Claimants were represented at the hearing by representatives of their own choice, which shows that they were not merely present as witnesses for Carrier. Cited are Awards 4909, 4910, 4912, 5376, 134, 409, 2132, 2512, 3230 and 3343.
While there is a conflict in the Awards of this Division on matters under consideration here we believe the majority rule to be at this time to interpret the use of the word "service" as used here to mean any service performed at the instance of the Carrier connected with the business of the Carrier. We do not believe that Article 5(e) applies to the facts here as no one of the Claimants were suspended and therefore, no reinstatement is involved. It is true that the notice stated the purpose of the investigation to be, "* * * to determine your responsibility for poor performance of train 529, Extra 6336 * * * " However, no blame was attached to any of the Claimants. As we understand the theory of Carrier's position, it is that no compensation should have been paid to Claimants. However, payments were made which were not consistent in application.
Under previous Awards of this Board we believe payment of compensation as claimed herein is consistent and is the intent of the rules of the Agreement on the factual situation presented. 7029-9 1gg
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and uon 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 majority in this Award correctly quotes from the notice sent Claimants herein which irrefragably made them principals and not witnesses at the investigation; as such they were liable to discipline. Thus, "mutuality of interest" obviously was established and Article 5, the discipline rule applied. Accordingly, the majority erred in distinguishing the instant case from precedent awards based on the "mutuality of interest" theory.
The majority also erred in its conjecture of Carrier's position concerning compensation due Claimants. The Carrier's position is that the specific rule, Article 5(e), takes precedence over the general overtime and rest day rules, Articles 2(b) and 3. The Carrier stated that Claimants Timmons and O'Connor were compensated under Article 5(e) for the assigned working hours they actually lost and that Claimant Dunn was allowed eight hours at straight time rate notwithstanding the claim date was his rest day and he lost no time.