JOINT TEXAS DIVISION OF CHICAGO, ROCK ISLAND AND
PACIFIC RAILROAD COMPANY-FORT WORTH AND DENVER
RAILWAY COMPANY
(Burlington-Rock Island Railroad Company)
STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:
EMPLOYES' STATEMENT OF FACTS: There is an agreement between the Carrier and the Claimant Organization, effective August 6, 1942. There is also a Memorandum of Agreement, effective September 1, 1949, revising certain rules of the agreement. Both are on file with your Honorable Board and by this reference are made a part of this Submission the same as though fully set out herein.
Rule 1, and Rule 16 (revised September 1, 1949), are particularly pertinent to this dispute and, for ready reference of your Honorable Board, are quoted here as follows:
Carrier affirmatively states that all data herein and herewith submitted have previously been submitted to the Employes.
OPINION OF BOARD: Claimant was a regularly assigned Third Trick Dispatcher. On September 7, 8, 9, 11, 12, 13 and 14, 1961, he filled a vacation vacancy as Chief Dispatcher. At that time the Chief Dispatcher's rate of pay was $766.00 per month. Claimant was paid at the rate of $29.37 a day. He contends that he should have been paid at the rate of $35.09 a day. His claim is for the difference for the seven days he so relieved the Chief Dispatcher.
Petitioner contends that Carrier violated Rules 1-Scope, and 16 which read as follows:
Rule 16, as quoted above was revised effective September 1, 1949, to give effect to the five day work week agreement which also became effective the same date.
Petitioner argues that Claimant's daily rate while filling the vacation vacancy should have been calculated in accordance with Rule 16 which is $766.00 (Chief Dispatcher's monthly rate) less $2.80 times 12 ($9158.40) divided by 261 ($35.09). For seven days this amount to $245.63.
Carrier contends that Claimant was properly paid under an Agreement dated at Houston, Texas, September 17, 1941 which reads as follows:
This Memorandum is signed by A. G. Whittington, Carrier's Vice President and by Trick Dispatchers, J. M. Long, J. L. Stover, W. M. Upsbaw and Vandy O. Anderson. It is not signed by Claimant nor by any officer or duly authorized agent of the Organization. The four Trick Dispatchers who executed the Memorandum signed it as individuals. It was executed before the Organization was certified as the collective bargaining representative for train dispatchers employed by Carrier.
Rule 16 of the Agreement between the parties dated August 6, 1942 provided as follows:
There is no merit to Carrier's position that since the Petitioner nowhere challenged the September 17, 1941 Agreement on the property, or in its Ex Parte Submission, but only in its rebuttal, that it could not raise the issue here. The fact is that on January 12, 1962 Petitioner wrote to Carrier, in part, as follows:
Also, the Agreement of August 6, 1942, in any event, replaced any agreement with individual employes the Carrier may have entered into prior to the time Petitioner became the certified representative for Carrier's train dispatchers. Also, Petitioner's Ex Parte Submission says:
These are the only valid Agreements before us. The Memorandum dated September 17, 1941, has no validity and may not be considered.
Carrier also argues that "Claimant is subject to Rule 16 of the August 6, 1942 Agreement" which provided that: "The daily rate of pay of Train Dispatchers will be arrived at by multiplying the monthly rate by twelve and dividing the result by three hundred thirteen." This is not so. The Memorandum of Agreement dated September 8, 1949 specifically says:
Rule 16 of the August 6, 1942 Agreement did not exist when this claim arose. The first paragraph of Rule 16 in the 1949 Agreement, above quoted, specifically says that the covered employes monthly rates shall be based on 174 hours. The second paragraph of Rule 16 says that: "To determine the daily rate, multiply the monthly rate by 12 and divide the result by 261." (Emphasis ours.) This refers to employes covered in Rule 1 in their ordinary, every day operation.
The third paragraph of Rule 16 applies only when a train dispatcher relieves a chief dispatcher on the latter's rest day and that, too, uses a divisor of 261 days.
It is clear that the 313 divisor contained in the August 6, 1942 Agreement was changed to 261 in the Agreement effective September 1, 1949. It was changed for every purpose whenever a Train Dispatcher relieved a Chief Dispatcher. 11560-17 417
The record also shows that for a period of ten years prior to the time this claim arose Carrier used the 261 divisor to compensate Train Dispatchers whenever they relieved a Chief Dispatcher. On October 25, 1961 Claimant submitted his claim and said:
Petitioner wrote to Carrier on October 27, 1961 and in referring to Rule 16 and the 261 divisor said that "this method of payment has been used for many years and its validity thereby assured . . " Carrier replied only that the practice was erroneous, in contravention of the agreement and without authority.
Rule 16 in the Agreement effective September 1, 1949 is clear and unambiguous. It clearly means that whenever a train dispatcher relieves a chief dispatcher, for whatever reason, he is paid a daily rate based on the chief dispatcher's monthly rate less $2.80 times 12 and divided by 261. This is further supported by Carrier's recognition and practice on the basis of this formula for about ten years prior to the time this claim arose.
It is true that the Agreement does not cover wage rates or working conditions of Chief Dispatchers. They are generally outside the Scope of that Agreement. We have held, however, that only the occupant of the position of Chief Dispatcher is excepted and that Train Dispatchers relieving him, for any reason, are entitled to all the benefits of the Agreement and to the Chief Dispatcher's monthly rate. Awards 5371 (Elson), 5904 (Daugherty) and others. In the Agreement involved in Awards 5371 and 5904 the Scope Rule read:
The language is almost verbatim with the Scope Rule in the Agreement before us.
In a complex work operation of train dispatching, it is a common practice for Train Dispatchers to relieve Chief Dispatchers on their days of rest, when they are ill, on leave of absence and on vacation. The Agreement contemplates this by providing in Rule 16 how Train Dispatchers shall be paid when they so relieve a Chief Dispatcher. It is not reasonable to say that when they so relieve a Chief Dispatcher they are no longer covered by the Agreement. If we consistently held that way, we would be upsetting a normal and reasonable arrangement and practice. We would further ignore contract rights to which covered employes are entitled. It is not our function to deprive covered employes of rights and privileges contracted for them by their certified representative. It is, rather, our responsibility to examine the total Agreement and apply the facts thereto.
On the basis of the valid Agreements and all of the relevant facts in the record we conclude that Claimant is entitled to be compensated as claimed.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: