"®..e Award No. 14945
Docket No. CL-15777
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
George S. Ives, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
MISSOURI PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood (GL-5820) that:
(1) Carrier violated the Clerks' Agreement when it failed and
refused to allow the employes called to work on June 15, 1964 compensation as provided in the rules.
(2) Carrier shall now compensate claimants the difference between amount paid and eight (8) hours' pay at pro rata rate for
June 15, 1964, as follows:
H. A. Sumrall 4 hours pro rata rate
Robert Collier 4 hours pro rata rate
W. G.Itson 4 hours pro rata rate
H. G. Rogan 4 hours pro rata rate
J. F. Felder 4 hours, 30 minutes pro rata rate
D. A. Triplett 5 hours, 30 minutes pro rata rate
P. Laurel 5 hours, 15 minutes pro rata rate
J. K. Hartsell 5 hours, 15 minutes pro rata rate
(3) Carrier shall now compensate claimants the difference between amount paid and eight (8) hours' par at pro rata rate plus
actual time worked outside their regular work periods, at time and
one-half as follows:
W. H. Hopper 1 hour, 45 minutes pro rata rate
3 hours, 30 minutes time and one-half rate
W. E. Wenzel 4 hours pro rata rate
2 hours, 15 minutes time and one-half rate
EMPLOYES' STATEMENT OF
FACTS: On June 15, 1964, a Trainmen's
strike was in progress and claimants were unable to reach their work loca-
J. K. Hartsell Caller's Office San Antonio 5 hr 15 min
H. H. Hopper Yard Office San Antonio I hr 45 min pro rata
and 3 hr 30 min overtime
W. E. Wenzel Yard Office San Antonio 4 hr 00 min pro rata
and 2 hr 15 min overtime
Following is data pertinent to this dispute:
H. A. Sumrall worked 8:30 PM-11:59 PM paid 3 hr 30 min
Robert Collier worked 8:30 PAI-11:59 PM paid 3 hr 30 min
W. G. Itson worked 8:30 PM-11:59 PM paid 3 hr 30 min
E. G. Hogan worked 8:30 PM-11:59 PM paid 3 hr 30 min
J. F. Felder paid 3 hr 30 min
D. A. Triplett paid 2 hr 30 min
P. Laurel worked 8:15 PM-11:00 PM paid 2 hr 45 min
J. K. Hartsell worked 8:15 PM-11:00 PM paid 2 hr 45 min
H. H. Hopper worked 8:15 PM- 2:30 AM paid 6 hr 15 min
W. E. Wenzel worked 8:15 PM-12:15 AM paid 4 hr 00 min
The only claimants who performed service outside their regular
assigned hours were H. H. Hopper (11:00 P. M. to 2:30 A. M.) and
W. E. Wenzel (10:00 P. M. to 12:15 A. M.).
It is our understanding that these employes did not report for
work at their usual starting time on June 15, 1964 because the trainmen were on strike. They were called in later in the evening, but
did not perform eight hours of service on this date. By their own
election not to report for work at the usual time they performed only
the amounts of work shown as paid opposite their names in the
second paragraph above.
There is no rule or agreement provision which requires payment
to an employe for time not worked because of his own withdrawal
from service. The agreement has not been violated.
Claims are without merit, and are respectfully declined.
OPINION OF BOARD:
Claimants failed to report to work on their
assigned positions on June 15, 1964 at the assigned starting times thereof
because they would not cross a picket line established by another Organization during a work stoppage on the Carrier's property. Upon being notified
by Carrier that the picket lines had been removed, Claimants reported for
work for varying amounts of time set forth in the Statement of Claim and
were allowed compensation for actual time worked at the straight time rate
of pay.
Petitioner contends that all Claimants are entitled to at least eight hours'
pay at the straight time rate and, further, that two Claimants, who were
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required to work beyond their normal quitting time, are entitled to time
,and one-half for the periods of time worked beyond their scheduled working
periods.
The pertinent provisions of the Agreement between the parties are as
follows:
"RULE 37.
DAY'S WORK, WORK WEEK, AND OVERTIME
(a-1) Day's Work. Except as otherwise provided in this rule,
eight (8) consecutive hours or less, exclusive of the meal period, shall
constitute a day's work for which eight (8) hours' pay will be
allowed.
(a-2) Hourly rated employes who report for work will be paid
a minimum of four (4) hours' pay at pro rata rates. If held on duty
more than four (4) hours after starting time, eight (8) hours' pay
shall be allowed. This paragraph shall not operate to reduce the
number of full time positions now in existence."
"RULE 43.
NOTIFIED OR CALLED
(a) Except as provided in Paragraph (b) of this rule, employes
notified or called to perform work not continuous with, before or
after the regular work period, or on Sundays and specified holidays,
shall be allowed a minimum of three (3) hours for two (2) hours'
work or less, and if held on duty in excess of two (2) hours, time
and one-half will be allowed on a minute basis."
"RULE 48.
BASIS OF PAY AND MAINTENANCE OF EARNINGS
(a) Employes covered by Groups (1) and (2), Rule 1, heretofore
paid on a monthly, weekly or hourly basis, shall be paid on a daily
basis. The conversion to a daily basis of monthly, weekly or hourly
rates shall not operate to establish a rate of pay either more or
less favorable than is now in effect."
Carrier contends that Claimants' refusal to cross the picket line Nvas
voluntary, and that employes may not recover time lost through their own
actions. Therefore, that the Claim must be denied in its entirety. Carrier objects to certain documents attached to Petitioner's Reply to Carrier's Submission to the Board because statements contained therein were not a part
of the handling of the dispute on the property.
We find that such statements (Petitioner's Exhibit R-1) are not prop.erly before us, as their submission does not meet the procedural requirements set forth in our Circular No. 1. Such exhibits should have been submitted on the property and attached to Employes' initial Submission. Awards
12903 and 13818.
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The record supports Carrier's contention that the Claimants voluntarily
refused to cross the picket line and only reported to their regular assignments after Carrier notified them that the picket line had been withdrawn.
Prior decisions of this Board have held that basic day rules are inapplicable
in situations where Claimants voluntarily absent themselves from work.
Awards 5853 and 11102. Accordingly, we will deny the claim insofar as it
demands payment for the difference between the amount paid to Claimants.
and eight (8) hours' pay at the pro rata rate for June 15, 1964.
Two Claimants were required to work outside their regular work periods
following the expiration of their regular work assignments. The language of
the Agreement is clear and unequivocal concerning the performance of work
after the regular work period. Carrier elected to have said Claimants continue working beyond their regular work periods and the provisions contained in Rule 43 (a) are applicable to the respective periods of 3 hours, 30
minutes and 2 hours, 15 minutes during which Claimants Hopper and Wenzel
actually worked outside their regular work periods. Part (3) of the Claim
as it pertains to actual time worked outside of the regular work periods by
Claimants Hopper and Wenzel must be sustained, and the two Claimants shall
be paid the difference between the pro rata rate which was given and the
time and one-half rate required by the Agreement. Award 1013, Fourth
Division.
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
Part (1) of the Claim is sustained.
Part (2) of the Claim is denied.
Part (3) of the Claim is sustained as modified in accordance with the,
above Opinion.
NATIONAL RAILROAD
ADJUSTMENT BOARD,
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 16th day of November 1966.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
14945