NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Levi M. Hall, Referee
PARTIES TO DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of The
Order of Railroad Telegraphers on the Missouri-Kansas-Texas Railroad that:
1. Telegrapher B. J. Engle, Relief Agent and Operator, Temple
and Granger, Texas should have been paid at the time and one half
rate for Wednesday, October 18, 1961, on which date, one of his
assigned rest days, he was required to attend a Railroad investigation as a witness for the Carrier; and that, therefore,
2. Telegrapher B. J. Engle shall be paid the difference between the straight time rate allowed and the time and one-half rate
to which entitled.
EMPLOYES' STATEMENT OF FACTS: Claimant, Mr. B. J. Engle,
was the regularly assigned incumbent of a Rest Day Relief position with a
scheduled work week as follows:
Thursday 12:01 AM-8:01 AM Telegrapher Temple $2.495 Hour
Friday 12:01 AM-8:01 AM Telegrapher Temple 2.495 Hour
Saturday 9:30 AM-5:30 PM Agent-Teleg. Temple 20.60 Day
Sunday 8:00 PM-5:00 AM Telegrapher Granger 2.495 Hour
Monday 8:00 PM-5:00 AM Telegrapher Granger 2.495 Hour
Tuesday Rest Day
Wednesday Rest Day
On Saturday, October 7, 1961, at about 10:25 A. M., while claimant was
on duty as Agent-Telegrapher at Temple, Texas, MKT Train No. 52 passed
a home signal in stop position while approaching the GC&SF (Santa Fe)
operated tower in Temple. Claimant was not involved; however, a few days
later he received the following notice:
Noon, and from 1:00 P. M. until 1:30 P. M. He made claim for eight hours'
pay on his daily time report, Form 1588, dated October 18, 1961, copy of
which is attached as Carrier's Exhibit A, Sheet 1, and was allowed eight
hours' pay at the straight time rate of $2.495 per hour, the rate of the
position of Agent-Telegrapher, Granger, the position last worked by Claimant Engle before attending the investigation, and also the rate of position
of Telegrapher-Clerk, Temple, the position first worked by him subsequent
to attending the investigation.
The allowance of eight hours' pay for attending the investigation at
Temple was improper, as Rule 10 clearly provides only for payment at the
daily rate of pay while in attendance at investigations under the facts and
circumstances involved here.
On November 17 1961 Claimant Engle wrote the Paymaster at Denison,
Texas (Carrier's Exhibit A, Sheet 2), claiming that there was a shortage
in his second period October, 1961 pay check amounting to $14.89, and that
this resulted from Carrier's failure to pay him eight hours at the time and
one-half rate of the position of Agent-Telegrapher at Temple, Texas, for
October 18, 1961, when he attended investigation at Temple as witness for
the Carrier.
There was, of course, no basis for any claim of eight hours or a minimum day at either the straight time rate or at the time and one-half rate,
and there was no basis for a claim of eight hours or a minimum day at
the time and one-half rate of the position of Agent-Telegrapher at Temple,
as alleged by Petitioner here, in view of the clear and unambiguous provisions of Rule 10, covering court and investigation attendance as contained
therein.
The claim contained in Mr. Engle's letter of November 17, 1961 was,
therefore, timely declined by General Superintendent R. B. George, to whom
it was referred by the Paymaster, and was subsequently appealed to the
undersigned highest operating officer of the Carrier authorized to handle
time claims and declined by the undersigned on February 16, 1962 (Carrier's
Exhibit A, Sheet 9). Conference on the property has been neither requested
nor held.
Actual photocopy reproductions of the correspondence between the
parties in connection with this claim is attached as Carrier's Exhibit A,
Sheets 2 through 10.
The controlling Agreement, No. DP-190, with Rules effective September
1, 1949 and Rates of Pay effective February 1, 1951, and the National Agreement of August 21, 1954, to which both the Missouri-Kansas-Texas Railroad
Company and The Order of Railroad Telegraphers are parties, are on file
with the Third Division, National Railroad Adjustment Board.
(Exhibits not reproduced.)
OPINION OF BOARD:
Before any consideration can be given to the
merits of this claim, we must give heed to the motion made by Carrier that
the claim be dismissed as it was not discussed in conference, as required by
the Railway Labor Act.
In Carrier's initial submission to this Board there appears this assertion:
"Conference on the property has been neither requested nor held." A search
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of Petitioners' Rebuttal Submission reveals that there is neither any denial
of nor any reference made to Carrier's statement that "a conference on the
property has been neither requested nor held." The silence of the Petitioner
is a tacit admission that Carrier's statement is true, and that no conference
was either held nor requested on the property.
As is stated in Award 11896:
"The question raised by the Carrier has been discussed in prior
awards of this Board. The Federal Courts have held that the Railroad
Adjustment Board has no authority to adjudicate a dispute unless the
statutory requirements of the Railway Labor Act are complied with
which unconditionally impose upon all Carrier and Employe representatives legal duty to hold a conference in connection with each
dispute that they are unable to settle by other means."
See also Awards 11434 and 11484.
Furthermore, in Award 13097 it is stated:
"The Organization is the moving party before this Board. If the
Petitioner wants to invoke the action and assistance of this Board
in adjusting a dispute between the Petitioner and the Carrier, Petitioner must demonstrate that every effort to settle his claim has
been exhausted on the property, and that includes the requirement
of the Railway Labor Act that a conference be held between the
parties."
For the foregoing reasons the claim must be dismissed.
Any attempt to discuss the merits of this claim would be merely academic and pure dictum, and such discussion would not be entitled to any
weight, either as a precedent or otherwise.
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
AWARD
Claim dismissed in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 19th day of January 1967.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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