NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employees Union on The New York, New Haven and Hartford Railroad, that:
EMPLOYES' STATEMENT OF FACTS: The Agreement between The New York, New Haven and Hartford Railroad Company and this Union, dated September 1, 1949 as amended and supplemented is available to your Board and by this reference is made a part hereof.
This claim was presented and progressed in accordance with the time limits provided by the Agreement up to and including appeal and conference with the highest officer designated by the Carrier to receive appeals. Having failed to reach a settlement, the Employees now appeal to your Honorable Board for adjudication.
TCU Exhibits Nos. 1 through 7 are reproductions of all the correspondence exchanged with the Carrier. There is no dispute as to the facts.
Mr. Zolinsky held a relief assignment at the time this dispute arose which included the following:
On Sunday, January 24, 1965, Mr. Zolinsky filled his assignment at Stam. ford, hours 8:00 A.M. to 4:00 P.M. He was notified by the Carrier to report at Darien at 4:00 A.M. Monday, January 25, 1965 or one hour in advance of the advertised reporting time of his position to apply salt and sand to the station platform at Darien, Connecticut due to snow conditions.
Mr. Zolinsky reported as instructed, that is, 4:00 A.M., or one hour in advance of his reporting time as instructed, he claimed two (2) hours at rate of one and one-half times the pro rata rate of the position. The Carrier paid him for one (1) hour at the time and one-half rate.
CARRIER'S STATEMENT OF FACTS: Claimant in this case, Operator V. M. Zolinsky, owned a regular relief position of Agent, covering Stamford Saturday and Sunday, Darien on Monday, and South Norwalk on Tuesday and Wednesday. On Monday, January 25, 1965, due to a heavy snowstorm, Mr. Zolinsky was required to report one hour in advance of his regular reporting time for the purpose of clearing snow from the station platform. For service rendered on Monday, January 25, 1965, claimant was paid on a continuous time basis through to the completion of his regular duty, receiving one hour at the punitive rate for service rendered in advance of his regular reporting time, plus payment for his regular assignment.
Under date of February 17, 1965, claim was instituted on behalf of Mr. Zolinsky for payment of one hour at the punitive rate for service rendered under the call provisions of the schedule agreement. The claim was progressed through the prescribed channels on the property up to and including the undersigned.
Copies of General Chairman Kelleher's appeal of April 12, 1965, and of decision by the undersigned dated June 11, 1965, are attached as Carrier's Exhibits "A" and "B," respectively.
The claim was denied on the property on the basis that service performed by the claimant was continuous with his regular work assignment.
The schedule agreement dated September 1, 1949, as amended, between the parties, and the National Non-Operating Agreement of August 21 1954, are on file with this Board and are, by reference, made a part of this submission.
OPINION OF BOARD: Claimant was required on January 25, 1965, to report for work at 4 A.M. rather than his regular starting time of 5 A.M. He remained through his regular work period and was compensated for one hour at the time and one-half rate in addition to payment for his regular assignment.
Carrier contends that his service was continuous and should be compensated at the overtime rate.
Claimant, however, contends he should have been compensated under the Call Rule, Article 7(a), which provides the equivalent of two hours at time and one-half rate as a minimum payment for two hours work or less.
The question is: How shall an employe required to report for duty before his regular starting time and continue to work through his regular shift be compensated?
This is far from a new question. On April 25, 1919, Interpretation No. 3 to Supplement No. 13 to General Order No. 27 was issued by the Director General of Railroads. This Interpretation covered the payment of a teleg-
The rule in question with Decision 757 provided pro rata for the ninth hour and time and one-half thereafter. The present language provides time and one-half for all "continuous working service after regular working hours." It is apparent that the intent is unchanged.
With regard to the Call Rule as it existed in 1924, the word "work" appeared where the word "service" now appears. Again, it is apparent that the intent is unchanged.
This Board, on March 8, 1935, in Award Number 22, decided without referee the question now before us, though the principal question concerned variance in assigned starting time. On March 20, 1935, this Board issued Interpretation No. 1 to Award 22 making it clear that employes reporting to work prior to regular starting time are entitled to payment under the Call Rule, following Decision No. 757.
In Award 4451 this Board was presented with a similar question, but faced a new rule which included the following language:
The Board thus found that the claim should fail. In the instant case the Agreement has no such language, though the parties have had ample time since Decision No. 757 to make such changes. Language similar to that in Award 4451 appeared in the Agreement in Award 6497.
In Award 14405, when the Board denied a claim similar to the one now before us, there were circumstances which we do not face, and we therefore do not feel bound to follow that decision.
We must conclude that the weight of precedent is on the side of the Claimant; that there has been no change in the Rule or its application, according to the record before us, which could cause us to disagree with the historic decisions, interpretations and awards mentioned. We therefore uphold the claim.