NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Nicholas H. Zumas, Referee
PARTIES TO DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
SOUTHERN PACIFIC COMPANY (PACIFIC LINES)
STATEMENT OF CLAIM:
Claim of the General Committee of The
Order of Railroad Telegraphers on the Southern Pacific (Pacific Lines),
that:
1. The Carrier violates Rule 7, Section (e) of the parties'
Agreement in that it fails and refuses to furnish J. E. Britt, Telegrapher-Clerk, Lovelock, Nevada, and all other employes on the Salt
Lake Division who have accumulated time under this rule, relief
for the full amount of time required by the rule or payment in lieu
thereof.
2. The Carrier shall, because of the violation set out in paragraph 1 hereof, commencing sixty (60) days prior to the date upon
which this claim is filed (October 24, 1960), and continuing thereafter so long as the violation continues, compensate J. E. Britt and
all other employes on the Salt Lake Division who have, or will,
accumulate time
under Rule
7, Section (e), the difference between
the amount paid them for such accumulation and the amount due
at the rate of the position occupied. A joint check of the Carrier's
records to be made to determine employes entitled to payment and
amount due.
EMPLOYES' STATEMENT OF FACTS:
There is in
evidence an
Agreement by and between the panties hereto, effective December 1, 1944
(reprinted March 1, 1951, including revisions) and as otherwise amended.
Rule 7 of said Agreement reads:
"RULE 7
REST DAYS
Section (a). Rest days shall be assigned and shall be the same
days of each week, but may be changed to meet service requirements
(Carrier's Exhibit "D"), stating ". . , only time worked within the limits of
regular assigned hours is counted under provisions of Rule 7, Section (e),
and this has been the system wide practice since the rule was adopted . . .
(Exhibits not reproduced.)
OPINION OF BOARD: This Claim involves an interpretation of Rule
7 (e) of the Agreement.
The Organization charges that Carrier violated and continues to violate
Rule 7 (e) of the Agreement by refusing to allow time worked on Sunday
or other rest days outside the employes' regularly assigned hours as a credit
toward the accumulation of rest days under the Rule.
Section (e) of Rule 7 provides as follows:
"Employes occupying positions requiring work on Sundays,
and/or other assigned rest days of less than the hours of their regular week day assignment shall be given rest periods of four (4)
consecutive days after performing thirty-two (32) hours' service
(not compensation) on such days. Extra employes shall be used to
relieve during such rest periods." [Emphasis added.]
The Organization contends that whether the work performed is within
the hours of .the week day assignment or outside the hours of the week day
assignment, it is all time that must be computed toward the accumulation
of the 32 hours prescribed as a basis for relief days.
Carrier argues that the qualifying time referred to in Rule 7 (e) is
limited to such time spent on Sunday and/or rest days within the limits of
the regular week day hours of the assignment, and that such interpretation
is clear when the provisions of Rule 7 (e) are juxtaposed with the other
sections of Rule 7. Carrier further argues that Rule 7 (e) has been consistently interpreted on the property for almost 18 years without objection
by the Employes. (Presumably the Carrier is, in effect, pleading in the
alternative, i.e. the rule is clear and unambiguous or alternatively, if it is not
then past practice on the property governs.)
The specific issue before this Board is whether the performance of
"service" under Rule 7 (e) includes work performed outside the hours of a
regular week day assignment.
In the absence of words qualifying the word "service" relative to the
time period within which such "service" was to be performed, we hold that
time within and outside an employe's regularly assigned daily hours may be
included in the computation of time for accumulated rest days as provided
in Rule 7 (e). We cannot, as Carrier urges, re-write the provision to read
"service within the limits of regular week day hours of assignment".
Our holding is further supported by the fact that qualifying words (viz.
"within the hours of their regular week day assignment") are included in
Rule 7 (c) relative to payment for the performance of "service".
It would have been a simple matter for the parties to make a similar
.qualification in Rule 7 (e) if this was what they had intended.
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From the Record it is clear that Carrier waived its objections to that
portion of the claim relating to "all other employes" by failing to raise the
necessary defenses on the property.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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 is sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 28th day of October 1966.
Keenan Printing Co., Chicago, Ill. Printed in U. S. A.
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