STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the effective Agreement when it suspended Section Foreman H. L. Walters from service during and throughout his regularly established eight hour work period on Friday, June 26, 1959.
(2) Section Foreman H. L. Walters now be allowed the exact amount of monetary loss suffered account of the violation referred to in Part (1) of this claim.
EMPLOYES' STATEMENT OF FACTS: The claimant was regularly assigned to the monthly rated position of Section Foreman rated position of Section Foreman on Section No. 111 at Wimbledon, North Dakota. He was regularly assigned to a 40-hour week, consisting of five days, eight hours each, Monday through Friday, with Saturdays and Sundays as designated rest days.
At 7:20 A. M. on Friday, June 26, 1959, the Carrier instructed and required the claimant to suspend work during and throughout his regularly established eight hour work period on that date.
In view of the fact that the Agreement rules provide that regularly established daily working hours will not be reduced below eight per day nor will the regularly established number of working days be reduced below five per week, except in a week in which a holiday occurs, the subject claim was properly and timely presented in behalf of the claimant.
The claim was handled in the usual and customary manner on the property and was declined at all stages of the appeals procedure.
The Agreement in effect between the two parties to this dispute dated November 1, 1960, together with supplements, amendments, and interpretations thereto is by reference made a part of this Statement of Facts.
These monthly rates comprehend payment for assigned eight hour work period on working days of month and eight hours at pro rata rate for each of the seven (7) holidays, as enumerated in Article 11, Section I, of Agreement of August 21, 1954. Overtime to be computed as provided in overtime rules of Agreement in effect.
Reiterating, it is the Carrier's position, Rules of the Agreement herein mentioned substantiate the position that a section foreman is covered by the rules of hourly rated employes.
OPINION OF BOARD: This claim arises on behalf of Section Foreman H. L. Walters because he was suspended from service on June 26, 1959. The Carrier defends its action in suspending the Claimant on such day by asserting the so called "inclement weather rule" or Rule 21 (b) which provides:
The Organization takes the position that the above quoted inclement weather rules does not apply to the Claimant, a section foreman, because he is a monthly rated employe. It is Organization's contention that the section foreman must be paid even though inclement weather prevented his working on the day in question and even though he was suspended by the Carrier.
We agree with the Carrier that Rule 21 (b) above quoted is applicable to the Claimant, a section foreman, even though he is a monthly rated employe. The Scope Rule involved herein provides: 12689-9 114
It should be further noted that the above quoted Rule 21 (b) deals with all employes. The only exception mentioned therein is in reference to Rule 33 which provides for time allowance to hourly rated employes who are required to report to work. This exception is not applicable in this case so as to remove the section foreman from the applicability of Rule 21 (b). In addition, Rule 69 provides:
Inasmuch as Claimant is included in Appendix "A", it appears that all employes were intended to be covered by the rules of the Agreement, unless such rule specifically excepts or exempts an employe from coverage. No such exception or exemption appears in Rule 21 (b). The Organization cannot be allowed to choose which rules should be applicable and which should not, rather the Agreement iself should provide the applicability or lack of same with regard to any rule.
For the above reasons, we hold that the section foreman is subject to Rule 21 (b). It being admitted that the weather was inclement, Carrier did not violate the Agreement by relying upon the provisions of such "inclement weather rule."
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