The Carrier has shown that under the applicable Agreement, the Claimants are not entitled to the additional compensation which they claim by reason of the alleged violation of Article 8, Section 8 of the Agreement.
Therefore, the Carrier respectfully submits that your Honorable Board should deny the claim of the Employes in this matter.
All data contained herein have been presented to the employes involved or to their duly authorized representative.
OPINION OF BOARD: It is agreed by the parties that the question at issue in Docket SG-8416, 8117 and 8418 turns on whether the claims involved in each case are before us under Article 2, Section 21 (f) of the applicable Agreement, as alleged by the Organization.
The claims filed in Dockets SG-8416, 8417 and 8478, by the "General Committee, Brotherhood of Railroad Signalmen of America, on the Pennsylvania Railroad" are in behalf of 26 named claimants (identical in all three cases) for alleged violations by Carrier of Article 8, Section 8 of the applicable Agreement, The only respect in which these three cases differ is that each charges a separate violation of Article 8, Section 8.
SG-8416 charges Carrier failed "to provide proper motor cars"; SG8417 charges Carrier failed "to install and maintain adequate set-offs and runways for motor cars"; and SG-8418 charges Carrier failed to provide proper headquarters for the T & S Employes" at 12 named locations.
The Organization claims, in each of the three cases, "that all T & S employes effected (by the violation cited in each instance) be paid in addition to their regular time made two hours and forty minutes at time and one half rate for each day starting ninety days prior to the date of this claim" and continuing until the particular violation charged in each case is corrected.
The claim made in each of the three dockets before us was properly filed with Carrier on September 1, 1951.
Carrier, under date of September 14, 1951, by separate letters to the Organization, denied the claims made.
On September 25, 1951, the Organization arranged to discuss with Carrier claims of the three cases at a meeting held October 3, 1951.
Carrier's Superintendent, by letter to the Organization dated January 3, 1952, denied the claims as made.
It is the position of the Organization that the claims in Dockets SG8416, 8417 and 8418, requesting on behalf of the named claimants "as they 7845-19 549
may be effected" payment "in addition to their regular time made two hours and forty minutes at time and one half rate for each day starting ninety days prior to the date of this claim" and continuing to the date the alleged violation was corrected, are claims "for money alleged to be due"; and Carrier's final denial, mae January 3, 1952, having come more than thirty days from the date (October 3, 1951) the claims were discussed with the Superintendent, therefore (by reason of Article 2, Section 21 (f)) "the claims shall be allowed."
Despite the fact that Carrier, by letter dated January 28, 1952 to the Local Chairman, denied the Organization's claim that Article 2, Section 21 (f) was applicble, the Organization offered in evidence letter dated June 12, 1952 from Carrier's Superintendent to the Local Chairman advising the Organization that "we are arranging, as instructed by the General Manager's office, to pay your claims * * * " an acknowledgment, the Organization avers, that Article 2, Section 21 (f) is applicable. The Organization turned down this offer because Carrier's suggestion would have provided payment from 90 days before claim was filed (September 1, 1951) until Carrier's denial of January 3, 1952, whereas the Organization insisted on payment to continue until the date the alleged violations were corrected.
It is argued on behalf of the Organization that "it is entirely reasonable to assume that if the Local Chairman had accepted the Carrier's compromising offer of June 12, 1952 there would have been no question raised by Carrier concerning the applicability of Article 2, Section 21 (f)."
The Organization cites numerous Awards of this Board, involving Carrier here concerned, in which, it is averred by the Organization, Carrier chose to use Article 2, Section 21 (f) or identical contract provisions, in its own defense in similar cases; and instances where the same Carrier argued, as it does here, that Article 7, Section 2 was applicable in similar claims, only to be reversed by Awards of this Board.
The record reveals that the organization raised the question of Article 2, Section 21 (f) in a letter to Carrier dated January 21, 1952, and Carrier, by letter dated January 28, 1952, stated it did not "consider that the claims made * * * are payable under Article 2, Section 21 (f) * * *."
With respect to Carrier's subsequent (June 12, 1952) offer to pay the claims as hereinbefore outlined, the Organization rejected the offer and it is not here before us.
The only issue before us, then, is the question of Article 2, Section 21 (f). We have studied the Awards cited by the parties in support of their respective positions.
A reading of Section 21 (f) would lead one to the conviction that it is here applicable, but 21 (f) cannot be lifted out of context. It must be studied with relation to the paragraphs which precede it.
For example, paragraph (f), by its language, is predicated on the preceding paragraph (e):
the foregoing paragraph (e) * * *." And paragraph (e) refers to paragraph (c).
The very language of Section 21, taken as a whole, would lead one to the conclusion that it covers "claims for money alleged to be due" from an error on Carrier's part in compensating an employe for work or services performed, for work or sevices such employe might have been entitled to peform, or for any other monetary provisions of the Agreement.
This is borne out by the language of the initial paragraph (a) when it says that such claims "must be presented * * * within ninety days from the date the employe received his pay check for the pay period involved." (Emphasis added.) 7845-20 550
If an employe performed work or services, and was not properly compensated by Carrier, such an employe might not be aware of such error until he received his pay check for the period involved. We can also conceive of the possibility of an employe feeling he was entitled to perform certain work or services, erroneously performed by others while he was on or off duty. Paragraphs 1 and 2 of initial paragraph (a) would protect his rights to make a claim when he returns to duty.
An analysis of the Awards cited by the Organization in support of its position here discloses that thirteen of such cited Awards involved claims for payment of services or work performed by claimants, or for work which claimants believed they had a right to perform, under the applicable Agreement.
Three of the cited Awards involved claims because the Organization averred Carrier-the same Carrier here involved-had violated Article 8, Section 10 of the Agreement.
Two of them, Award 5219 (Wenke) and Award 5284 (Wyckoff), involved a charge arrier failed to provide claimants with headquarters, and as a consequence, claimants were required to carry tools, materials and clothing in their own automobiles to and from their homes; in other words, to work outside their regular hours, as in Award 5186.
In view of the foregoing, we must and do conclude that the Organization's claims, as outlined in SG-8.116, 8417 and 8418, are not, as the Organization argues, claims "for money alleged to be due" under Article 2, Section 21 of the applicable Agreement.
Therefore, the Organization having stated "this claim should be sustained under the provisions of Article 2, Section 21 (f)" because "there can be no question that the Carrier violated the provisions of Article 2, Section 21 (f)", a denial of the claim is in order.
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 disputes involved herein; and