Award Number 17365 Docket Number TE-16545 NATIONAL RAILROAD ADJUSTMENT BOARD
STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employees Union on the Missouri Pacific Railroad (Gulf District), that:
EMPLOYES' STATEMENT OF FACTS: On June 3, 1965 during the peak of the cantaloupe season at Rio Grande City, Texas, Agent-Telegrapher Bonnie D. Pearson completed her duty within the assigned hours of 8:00 A.M. to 5:00 P.M. Prior to and on June 3, 1965, Mrs. Pearson had called upon Trainmaster G. D. Richey for additional help due to the unusual heavy movement of cantaloupes. Trainmaster Richey on each occasion informed Mrs. Pearson that we have no available employees. On the date in question, June 3, 1965, when it became evident that seventy carloads would move out that night, Mrs. Pearson again called Mr. Richey and was informed that we have no available employees. Mrs. Pearson stayed at her post and continued to perform the work of signing bills of lading, waybill and seal carloads of cantaloupes until 10:00 P.M. At about 10:00 P.M., Mrs. Pearson was found unconscious in the office slumped over her work. She was rushed to a hospital at Harlingen, Texas and it was determined that her condition was from overwork and sheer exhaustion.
OPINION OF BOARD: Claimant was an Agent-Telegrapher at Rio Grande City at the time of the incidents which gave rise to this claim. On June 3, 1965 after she had completed her regular assigned hours of 9:00 A.M. to 6:00 P.M., she continued on duty, because of a heavy movement of cantaloupe carloads, requiring her continuing activities in signing bills of lading, waybill and seal carloads. The record shows that there were 75 cars to be handled that night; the number had not exceeded 11 per day up to May 24; on May 24 it was 18 and then on successive days, 21, 41, 48, 39, 35, 30, 36, 41 and 49 (on June 2nd, the day before the subject incidents). Claimant was concededly the only Agent-Telegrapher on duty.
It is undisputed that at about 10 p.m. on the evening of June 3, 1965, Claimant became ill on the job and was taken to a hospital at Harlingen, Texas, and that it was subsequently reported by a Dr. D. E. Schultz that Claimant was suffering from emotional and physical exhaustion. It is also undisputed that Claimant remained ill and out of work for eighteen work days.
The claim here in controversy is for eighteen days' pay, plus express commission, which Employes contend was lost by Claimant because of Carrier having "overworked" and "unjustly treated" her, within the meaning given those words in Rule 26(b):
Carrier rejects the claim on the grounds that Claimant has been neither overworked or unjustly treated, that there is no obligation in the Agreement to provide payment to employes who are off duty because of illness and because the facts do not bring the claim within the purview of Rule 26(b) or demonstrate a violation thereof.
The record reveals a number of unresolved factual conflicts between the parties.
Our examination of these factual conflicts discloses in one of them a critical deficiency in Claimant's case. There is absent probative support for a showing that there was an express "complaint" within the meaning of Rule 26(b), to which Carrier in turn failed to respond by not joining with Organization in investigating and if sustained, alleviating.
Absent such a showing, it cannot be either said that the situation before us is governed by Rule 26(b) or demonstrates a violation of said rule. These burdens of proof are on the Claimant. They have not been met.
Rule 26(b) requires a first-instance joint investigation by Carrier and Organization when there has been an allegation of overwork or unjust treatment. Also, its ultimate remedy is addressed to "relief". This is clearly a reference to alleviation of the situation complained of.
In the instant situation, (a) the claim before us is not a request for relief or (b) a proved case of relief demanded, or (c) of failure to move jointly for investigation in the face of such a proved demand, or (d) denial of "relief" when there had been such a demand, such an investigation and a finding for the need of relief.