5418, 2676, and others. Also see Second Division Awards Nos. 2938, 2580, 2569, 2545, 2544, 2042, 1996, and others.
The Carrier reserves the right if and when it is furnished with the ex parts submission of the Employes in this case, which it has not seen, to make such further answer and defense as it may deem necessary and proper in reply to all allegations and claims as may be advanced by the Employes in such submission, and which have not been answered in this, its initial answer.
All facts submitted in support of Carrier's position in this case have been presented orally or by correspondence to the Employes or duly authorized representative thereof, and made a part of this dispute.
OPINION OF BOARD: Since the facts have been stated above they will not be restated in detail here. There was a strike by another craft on the property of the Carrier. Claimant's assignment on the day on question was to start at 11:30 P. M. October 30, 1958. He did not cross the picket line but waited outside the line until midnight when, upon its removal, he went to work. He was paid for 7'/a hours work and claim is for the 30 minutes from 11:30 P. M. to midnight on that day.
Claimant's position is that the Agreement provides for 8 hours compensation on the day in question, that Article 4(a) states that train dispatchers shall be considered monthly Employes but compensated on a daily basis; and there are no provisions in the Agreement providing for compensation for train dispatchers on an hourly basis except in the payment of overtime.
Carrier's position is that under the terms of the Agreement that in order to receive payment of a full days pay an Employe must put in a full days work or at least be available for the performance of a full days work, that his absence from his post for the 30 minutes involved was a voluntary act on his part and that therefore he should only be compensated for the actual time he worked.
The Board finds that the Claimant's absence for the half hour was due to his own choice to respect the picket line and therefore under the circumstances his absence was voluntary.
There is a conflict in the record as to whether the Claimant waited the half hour outside the picket line pursuant to instructions from his "superior officer," William Raines, Acting Chief Dsipatcher. The Board finds on this point that the Claimant has not sustained the burden of proof.
The basic problem involved here is the Claimant's contention that no provision exists in the effective Agreement for the payment of train dispatchers on an hourly basis; that since Claimant is a monthly Employe whether Carrier must pay Claimant a minimum of eight hours per day.
It is clear from the above that it was contemplated that train dispatchers must work eight hours to receive eight hours pay. This Board cannot write a "Basic Day" rule such as that which the Operating Crafts have, into the Train Dispatchers' Agreement. This must be done by negotiation.
The Board finds in this case that Article 2(a) and Article 4(a), (b) and (c) were not intended by the parties to determine, and do not determine the right of an Employe who has a regular assignment to be paid for time when he is voluntarily absent from his position. The Board is of the opinion that there is shown no violation of the existing Agreement and further that the Carrier was authorized to deduct from Claimant's pay for time he was Vol untarily absent from work.
FINDINGS: The Third Division of the Adjustment Board, 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