5. In the second instance mentioned above, the foreman and laborers reported to the new location, traveling from their homes to location of the day's work in their automobiles and moving each day to the nearest road crossing.
6. In the third instance mentioned above, road crossings were not readily accessible to the location of the work, and for this reason work was started and completed each day at the employes' automobiles and time paid to and from location of the work.
POSITION OF CARRIER: This extra gang was handled in exactly the same manner as has been our practice for many years. In numerous instances, the same methods have been pursued to the satisfaction of the foremen and laborers as in most cases the laborers were able to travel to and from home in their automobiles, and in no case were they requested or required to reside at any particular location. It is further mentioned that if they failed to report for work account of weather or breakdown of their automobile, they were not penalized.
It will readily be seen that this arrangement was for the benefit of the men and until the instant claim was presented we had no knowledge of any exception to or dissatisfaction with the arrangement.
In view of the fact that the extra gang was handled in the usual and customary manner, and that no new practice was involved, the carrier requests that this claim be denied by the Honorable Board.
We refer to Third Division Award No. 5886, Docket No. MW-5809, wherein claim was denied.
Since this is an ex parte case, this submission has been prepared without seeing the employes' statement of facts or their contention as filed with the Board, and the carrier reserves the right to make a further statement when it is informed of the contention of the petitioner, and requests an opportunity to answer in writing any allegation not answered by this submission.
OPINION OF BOARD: It is claimed that Carrier violated Rule 5 (e) of the effective Agreement, which states:
The surrounding facts are not in dispute. On four different successive periods from April 1, 1959 to August 20, 1959, an extra gang was assigned to three different locations. They were not assigned to outfit cars at any of these areas. Tool houses existed at various locations in each of the separate areas in which the work was done, but the employes were not ordered to report to them before commencing work on each day, going instead either to crossings near the work sites or, where road crossings were not readily accessible, to the locations of the work itself. In the former case, their time was recorded as beginning and ending at the crossings; in the latter case at the employes' automobiles.
Petitioner's claim is for compensation for time consumed daily in going to and from tool house locations. It cites as support for the redress sought, Rule 5 (a), which provides that eight consecutive hours, exclusive of the meal period, shall constitute a day's work and Rules 5 (1) and (m), provid- 1 2958-6 989
ing that time worked preceding or following and continuous with a regularly assigned eight-hour period shall be paid for at time and one-half rates (at double time after 16 continuous hours in any twenty-four hour period).
Carrier does not enter any denial of the facts given by Petitioner, but states that the practice has been in existence for many years and that inasmuch as it enabled the men to make use of their automobiles, was for the benefit and convenience of the employes.
The record also does not disclose any refutation by the Carrier of the estimates of travel time given by Petitioner which were or would be required for trips to and from tool house locations.
We do not find the single ground advanced by Carrier-that of practice contrary to agreement terms-persuasive.
The language of Rule 5(e) is plain and unambiguous, its meaning clear and certain. The same may be said of Rules 5 (e), (1) and (m), invoked by Petitioner for remedy sought. When this is true, we may not look beyond the agreement terms themselves into practices.
The Agreement terms support the Petitioner's position for the given facts. The Claimants must be upheld.
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