STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FAG'S: The claimants were regularly employed as Bridge and Building Mechanics, under the supervision of Bridge and Building Foreman C. H. Watson, with headquarters at Parsons, Kansas.
Inasmuch as Washington's Birthday, February 22, 1953, one of the seven designated holidays, fell on a Sunday, Monday, February 23, 1953 was observed as a holiday within the meaning and intent of the agreement rules.
On Monday, February 23, 1953 Bridge and Building Foreman Watson was notified that a bridge in the vicinity of Parker, Kansas had been damaged in a derailment. Foreman Watson in turn called the claimants as well as B & B Mechanic Wayne Russell to report at their designated assembling point at 7:00 A.M. Upon arrival, they were instructed to load the necessary tools and materials (lumber) in a truck. They completed this work at 7:15 A.M., at which time they departed from their headquarters; claimants Phillips and Spencer riding with Foreman Watson in his automobile; claimant Cunningham riding in the truck with the driver, B & B Mechanic Russell. They consumed ls/4 hours in going to Parker, 4 hours in repairing the Bridge, and 2 hours in returning to their headquarters at Parsons, working a total of 8 hours.
point of work and return IS NOT WORK but is travel time, payment for which at straight time rate of pay is directed by Rule 2, Article 12, which special rule specifically covering payment for travel time is applicable; takes precedence over all other rules of the agreement, and controls the circumstances and payment to be made the claimants.
Inasmuch as the claim alleged is for "work" and travel time IS NOT WORK, the employes performed no "work" during the period for which claim is made. The facts, therefore, do not support the claim for "work"; and the agreement which provides for payment for travel time under Rule 2, Article 12, at straight time rate of pay, does not support the claim for time and one-half.
All data submitted herein in support of the Carrier's Position have been heretofore submitted to the employes or their duly authorized representatives.
The Carriers request ample time and opportunity to reply to any and all allegations contained in the Brotherhood of Maintenance of Way Employes', System Committee's and Employes' submission and all pleadings.
Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, expressly deny each and every, all and singular, the allegations of claim and ex parte submission of the Brotherhood of Maintenance of Way Employes, System Committee of the Brotherhood, and the Employes.
For each and all of the foregoing reasons, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, respectfully request the Third Division, National Railroad Adjustment Board, deny said claim, and grant said Railroad Companies, and each of them, such other relief to which it or they may be entitled.
Claimants were paid for 4 hours and 15 minutes at the time and one-half rate under the provisions of Rule 1, Article 8 of the Agreement, and for 3 hours and 45 minutes at the straight time rate for travel time under the provisions of Rule 2, Article 12, of the Agreement.
Claim was filed on the property for three and three-quarters (3s%4) additional pay at half-time rate on the premise that travel time should have been paid at the time and one-half rate. The claim was properly progressed on the property and was declined by the Carrier on June 29, 1953.
Employes gave Notice of Intent to file an ex parts submission with this Division on October 18, 1955. 8457-24 256
Before proceeding to a consideration of the merits of this dispute it is necessary to dispose of Carrier's objection that this is a stale claim and that it should be dismissed because of alleged unreasonable delay in prosecuting the appeal to this Division.
As a defense Employes rely on the National Agreement of August 21, 1954, and more specifically Article 5, Section 2, the pertinent part of which is as follows:
The record here discloses that this claim was filed within the time limitation agreed to by the parties in the foregoing Agreement. We, therefore, find and hold that the claim is properly before this Division.
The sole issue in this case is what constitutes the proper rate of pay for travel time under the effective Agreement.
Employes rely on Rule 4, Article 7, "Hours of Service", Rule 1, Article 8, "Holidays", and Rule 1, Article 11, "Calls", as requiring payment of time and one-half for time consumed in traveling to and from the repair site.
Carrier insists that Rule 2 of Article 12, "Travel Time", is the applicable rule and that Claimants have been properly compensated under that rule. It also cites this Division's Award 6651, involving the same parties and issue, as controlling.
After thorough study of all the evidence of record, as well as the awards cited to us by both parties, we have reached the conclusion that the Carrier's position is sound and that this claim must be denied.
Award 6651 held, and properly so, that Rule 2 of Article 12 was the controlling rule as a specific contract provision designed to meet a particular situation, i.e., the rate of pay that the parties agreed would be applicable to time spent in traveling to and from the work sites. As such, Rule 2 prevails over those rules relied on by the Employes under established and accepted principles governing the interpretation and construction of contracts.
Under the provisions of Rule 2 of Article 12, we find and hold that Claimants have been properly compensated and that the Agreement was not violated.
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