Award Number 17316
Docket Number TD-17946
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Robert C. McCandless, Referee
PARTIES TO DISPUTE:
AMERICAN TRAIN DISPATCHERS ASSOCIATION
SEABOARD COAST LINE RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the American Dispatchers Association that:
(a) The Atlantic Coast Line Railroad Company (now Seaboard
Coast Line Railroad Company) hereinafter "the Carrier", violated the then effective Agreement between the parties, Article
3(b) thereof in particular, by its failure to properly compensate
Train Dispatcher D. Oelslager for service performed on February 23, 1967, one of Claimant Oelslager's assigned weekly rest
days.
(b) The Carrier shall not be required to compensate Claimant
Oelslager at time and one-half rate for February 23, 1967, instead of at the pro rata rate of compensation period
EMPLOYES' STATEMENT OF FACTS: At the time here in question
an Agreement was in effect between the Atlantic Coast Line Railroad Company (now part of the Seaboard Coast Line Railroad Company) and the
Claimant Organization. A copy of that Agreement should be on file with
this Board and by this reference the same is incorporated into and as a part
of this Submission as though fully set out.
"NOTE: Pursuant to authority granted by the Interstate Commerce
Commission, the former Seaboard Airline Railroad and the former
Atlantic Coast Line Railroad were merged into and became the
Seaboard Coast Line Railroad Company, effective on or about
July 1, 1967. The schedule agreement negotiated by the parties and
applicable to the merged Carrier, patterned after and in much the
same terms as that applicable to the former Seaboard Air Line
Railroad Company, is not involved in this dispute.)
For the Board's ready reference Article 3 of the Agreement applicable
to the former Atlantic Coast Line Railroad Company and which was in
effect at the time here involved is quoted in pertinent part:
"REST
DAYS:
(a) Each regularly assigned train dispatcher will be entitled and
required to take two (2) regularly assigned days off per week as
rest days, except when unavoidable emergency prevents furnishing
relief. Such assigned rest days shall be consecutive to the fullest
(Exhibits not
reproduced)
CARRIER'S STATEMENT OF FACTS: Effective July 1, 1967, the Seaboard Air Line Railroad Company and the Atlantic Coast Line Railroad
Company merged and became designated as Seaboard Coast Line Railroad
Company.
The claimant in this dispute is a former Atlantic Coast Line employee
who was, on the date involved in the claim, subject to the agreement
between the Atlantic Coast Line Railroad Company and its train dispatchers
represented by the American Train Dispatchers' Association, dated September
1, 1949, as amended.
A pre-deposition conference was held in the office of Carrier's Division
Counsel at Tampa, Florida, on Thursday, February 23, 1967, in connection
with suit brought against Carrier as a result of highway crossing accident
which occurred at Dover, Florida, on April 15, 1966. Train Dispatcher Oelslager, Tampa, Florida, and several other employees, were required to attend
the pre-deposition conference. Mr. Oelslager attended the conference on his
rest day and was paid a straight time day for attending the conference in
office of Division Counsel.
Claim was presented in behalf of Mr. Oelslager for 8 hours at rate of
time and one-half for service performed on his rest day on Thursday,
February 23, 1967, attending this pre-deposition conference.
The Association based its claim in behalf of Mr. Oelslager on alleged
violation of Article 3(b) of the Agreement effective September 1, 1949, which,
for convenience is quoted below:
"Article 3
"Rest Days:
"(b) A regularly assigned train dispatcher who is required to perform service on the rest days assigned to his position will be paid
at rate of time and one-half for service performed on either or both
of such rest days.
There having been no violation of the Agreement, the claim for
punitive payment to Train Dispatcher Oelslager on February 23, 1967, was
at all times declined on all levels of appeal on the property.
OPINION OF BOARD:
Claimant, a train dispatcher for Carrier, was
sent the following directive on February 21, 1967, by Carrier's Chief
Dispatcher:
"Please report to Attorney Reeves in Marine Bank Building
8:30 A.M. Thursday, February 23 for predisposition (sic) conference and attend depositions later in connection with crossing accident
at Dover April 15, 1966."
The date of this conference and deposition taking fell upon one of
Claimant's rest days. After having dutifully attended this conference for
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Carrier, Claimant put in for eight (8) hours at time and one-half. Carrier,
instead, allowed Claimant eight (8) hours of straight time. Employes contend that the Agreement supports Claimant's claim for time and one half.
Carrier claims that time and one-half is not supported by the Agreement,
alleging that attending a deposition taking was not the kind of "service"
intended by the language of the Agreement. Nonetheless, Carrier allowed
the eight (8) hours of straight time pay.
The pertinent sections of the Agreement are set forth below:
"ARTICLE III
"REST DAYS:
(a) Each regularly assigned train dispatcher will be entitled and
required to take two (2) regularly assigned days off per week as
rest days, except when unavoidable emergency prevents furnishing
relief. Such assigned rest days shall be consecutive to the fullest
extent possible. Non-consecutive rest days may be assigned only in
instances where consecutive rest days would necessitate working
any train dispatcher in excess of five (5) days per week.
(b) A regularly assigned train dispatcher who is required to
perform service on the rest days assigned to his position will be
paid at rate of time and one-half for service performed on either or
both of such rest days.
An extra train dispatcher who is required to work as train
dispatcher in excess of five (6) consecutive days shall be paid one
and one-half times the basic straight-time rate for work on either
or both the sixth or seventh days but shall not have the right to
claim work on such sixth or seventh days.
(c) The term 'Rest days' as used in this section means that for
a regularly assigned train dispatcher seventy-two (72) hours, and
for a relief train dispatcher (who performs five (5) consecutive
days' service as train dispatcher) fifty-six (56) hours, shall elapse
between the time he is required to report on the day preceding his
rest days and the time he is required to report for duty on the day
following his rest days. These definitions of the term `Rest days'
will not apply in case of transfers due to train dispatchers exercising
seniority.
"
Although it is true that the Agreement is not explicit as to time and
one-half payment for services other than those normally consistent with
one's regular duties, this Board feels that the required attendance of Claimant for Carrier's purposes at this conference on Claimant's rest day must
be considered "service" in Carrier's employ and must therefore be compensated at the rate of time and one-half. This "service" rendered by Claimant
was, or was considered by Carrier's actions, at least as vital as his regular
service to Carrier.
However, this Board is loathe to sustain this award for a full eight
(8) hours of time and one-half pay when the record is silent as to exactly
how much of Claimant's rest day was usurped by this conference.
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Consequently, we sustain the claim for time and one-half pay to be
computed by the minute for the exact amount of time Claimant spent at the
conference and deposition taking. However, we remand to the property the
question of how much of Claimant's time was required in consonance with
the above opinion.
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,
1984;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated to the extent indicated in Opinion.
AWARD
Claim sustained but remanded for finding of material fact.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 24th day of July 1969.
Central Publishing Co., Indianapolis, Ind. 46206 Printed in U.S.A.
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