Award No. 18038
Docket No. TE-17350
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
David
L.
Kabaker, Referee
PARTIES TO DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
CHICAGO GREAT WESTERN RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the General Committee of the
Transportation-Communication Employees Union on the Chicago Great Western Railway, that
1. Carrier violated the Agreement between the parties when
it failed and refused to compensate G. R. Hoisington, telegrapherclerk at Chicago Transfer, Illinois for the service of acting as witness for the Carrier at investigation held on December 23, 1965
and April 25, 1966.
2. Carrier shall be required to compensate G. R. Hoisington
five (5) hours' pay at the straight time rate for December 23, 1965
and four (4) hours' pay at the time and one-half rate for April 25,
1966.
EMPLOYES' STATEMENT OF FACTS:
(a) STATEMENT OF THE CASE
This dispute is based on the provisions of the Agreement between the
parties, effective June 1, 1948 (reprinted May 1, 1958), as amended and
supplemented. This
Agreement (and
its supplements and amendments) is
available to your Board and by this reference is made a part hereof. This
dispute involves two separate claims in behalf of G. R. Hoisington for compensat:on due him for attending discipline hearings in the capacity of a
witness for the Carrier.
(b) ISSUE
The issue here involved is whether or not the Carrier is liable for compensation to an employe who acts as a Carrier witness at discipline hearings
involving other employes. It is the contention of the Organization, and such
was made in the handlin^ on the property, that Claimant is entitled to compensation for this service, which was performed outside his regularly assigned
hours.
was remanded in accordance with Opinion of Board in Award 11221,
reading in part:
"We most therefore remand the claim before us for
further negotiations between the parties. If negotiation
fails, their proper forum is the National Mediation Board."
The Employes also resorted to the same tactics in dispute pending adjudication by the Third Division in Docket TE-16095.
It is quite evident you recognize that the instant claims are
not actually supported by the rules in airect on this property and
that accounts for your reliance on Third Division Awards 4569,
6679, 6736, 10509 and 14124, involving disputes under rules in
effect oil other railroads. However, the governin- rules in our
dispute are the rules agreed to by the parties in N.MA Case A-2772,
which clearly rejected compens:tiun for attending investigations in
both Rule 15 (Attending Court-Witnesses) and Rule 5 (Notified
or Called).
Yours truly,
/s/ D. K. Lawson
Vice President - Personnel
The Employes have not denied history of negotiations leading to adoption of Rules 5 and 15 in National Mediation Board Case A-2772, as set
forth by Carrier in the foregoing letter dated June 19, 1967, but subsequently
combined their claims dated December 23, 1965 and April 25, 1966, as set
forth in "Statement of Claim" herein and submitted entire dispute to the
Third Division, National Railroad Adjustment Board, in letter dated July
20, 1967.
OPINION OF BOARD:
Claimant, who occupied a position the duties
of which included handling a crew board, was on two occasions required
by Carrier to attend investigations, concerning irregularities in use of crew
members, outside his regular hours.
He claimed pay for the time consumed in each case. Employes cited
Rule 15(b) as being specifically applicable; and when Carrier disagreed they
cited Rule 5 (a), contending that one or the other must apply.
Rule 15 (b) reads as follow:
"Employes attending court or acting as witnesses outside of
their assigned hours, at the request of the Carrier, will be paid
pro rata rate for the actual time devoted to such attendance."
The main thrust of Carrier's contentions is that this rule relates solely
to court attendance. The language does not admit of such a narrow meaning. It would negate the phrase "or acting as witnesses". It is well settled
that the Board may not properly revise a rule by interpretation.
18038 -
Since the rule clearly limits the payment to pro rata both claim will
be allowed at that rate.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
Thai 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 juris<:iction over the
dispute involved herein; and
That the Agreement was violated.
AWARD
Claim sustained in accordance with the Opinion and Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 17th day of July 1970.
Keenan Printing Co., Chicago, Ill. Printed in U. S. A.
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