NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Lee R. West, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
DULUTH, MISSABE AND IRON RANGE
RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the effective Agreement when it denied
Section Laborer Elmer Salo the right to work on December 19 and
20, 1959.
(2) Elmer Salo be allowed (16) hours' pay at his straight time
rate of pay for time lost on December 19 and 20, 1959.
EMPLOYES' STATEMENT OF FACTS: Prior to December 19, 1959
Elmer Salo was assigned to a work week of Wednesday through Sunday, with
Mondays and Tuesdays as his designated rest days.
However, he was required to suspend work on Saturday, December 19th
and Sunday, December 20th, 1959, the last two work days of his Wednesday
through Sunday assignment, thereby causing him to suffer the loss of two
days' pay.
Consequently, claim as set forth herein was timely presented and progressed in the usual and customary manner on the property, but was declined at all the stages of the appeals procedure.
The Agreement in effect between the two parties to this dispute dated
June 1, 1953, together with supplements, amendments, and interpretations
thereto is by reference made a part of this Statement of Facts.
POSITION OF EMPLOYES: Rule 13 (b) reads:
"(b) Except by agreement between the Company and the Committee, regularly established daily working hours will not be reduced
below eight (8) hours per day, five (5) days per week, except that
this number of days may be reduced in a week in which holidays
occur by the number of such holidays."
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employes working on Saturday or Sunday. Therefore, claimant of necessity,
had to wait to resume work on the following Monday.
CONCLUSION
The Carrier respectfully requests that your Honorable Board sustain the
position of the Carrier and deny the claim of the Employes as it has been
clearly shown in the foregoing that there is no substance to the claim of the
employes in this docket.
(Exhibits not reproduced.)
OPINION OF BOARD:
Section Laborer Elmer Salo was assigned to a
work week of five (5) days; Wednesday through Sunday. He was laid off at
close of work on Friday. He received compensation for three days of his
assigned work week. Claim is made for the fourth and fifth days.
On January 19, 1948, this Board adopted Award 3757 in which we ruled:
"OPINION OF BOARD: Robert Spohn, working on a regularly
assigned position as section laborer, was notified on a Monday that he
was being laid off at the end of that day. He was paid for just that
one day in that week.
The Organization contends that it was a violation of Rule 4-a-1
for the carrier, having started him on work for the week, not to
have given him work and paid him for work on the next four days.
Rule 4-a-1 is as follows:
`RULE No. 4-TIME ALLOWANCE
Hours Paid For. 4-a-1.
Except as provided in Rules 4-b, 4-b-1, and 4-b-2 the
regularly established daily work hours will not be reduced
below eight (8) consecutive hours per day, nor will the
regularly established number of working days be reduced
below five (5) consecutive days per week, except that this
number of days may be reduced in a week in which holidays occur, by the number of such holidays.'
We are of the opinion that this Rule does guarantee work for
five consecutive days per week except in weeks in which holidays
occur.
The rule would not prevent the Carrier from abolishing positions
of hourly rated employes at the conclusion of their work. When a
man's week is started, however, he is employed for five consecutive
days under this Rule and the unilateral action of the Carrier cannot
terminate such employment prior to the expiration of the five day
period."
Rule 14 of the Agreement between the Parties to this dispute, effective
September 16, 1942 (as amended) at that time provided:
(a) Except by agreement between the Company and the Committee regularly established daily working hours will not be reduced
below eight (8) hours per day, five days per week, except that this
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number of days may be reduced in a week in which holidays occur
by the number of such holidays . . . ."
By letter dated July 18, 1952 (accepted in writing by the General Chairman) Carrier's Director of Personnel confirmed an Agreement between the
Parties as follows:
"July 18, 1952
This will answer your letter of May 31 and confirm our understanding reached in conference on June 9 relative to your protest
regarding the application of Rule 14 and the past practice of reducing Maintenance of Way forces prior to the end of the work week.
Mr. Pattersen, Vice President and General Manager, stated that
he concurred with your position and that in the future the Company
would be governed by the decision in Award 3757 rendered by the
Third Division of the National Railroad Adjustment Board and make
force reductions only at the conclusion of the work week, and that
this would apply to all employes covered by the scope of the
Maintenance of Way Agreement."
On June 1, 1953, the Parties re-adopted without change the portion of
Rule 14 quoted above, and numbered it Rule 13 (b).
On the foregoing facts, Rule 13 (b) must be given the same interpretation attributed to it by the Parties' Agreement evidenced by letter of July
18, 1952. Under that interpretation, force reductions may be made "only at
the conclusion of the work week."
For the above reasons we find Claimant was improperly laid off and
is therefore entitled to claimed compensation.
The claim is therefore sustained.
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
That the Agreement was violated.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Scbulty
Executive Secretary
Dated at Chicago, Illinois, this 27th day of October 1964.