STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused to compensate Bridge Tender L. A. Burney in accordance with the Call Rule (Rule 26) for the services he performed prior to and not continuous with his regular work period on September 17, 24, 2.5 and 27, 1968, and on all subsequent dates that he performs service under similar conditions. (System File 12-26MI2-27.)
(2) Bridge Tender L. A. Burney be allowed the difference between the amount he received and the amount he should have received under the provisions of the Call Rule for the services he performed or performs on the dates referred to in Part (1) of this claim.
EMPLOYES' STATEMENT OF FACTS: Claimant L. A. Burney was regularly assigned to the position of Bridge Tender at Buffalo Bluff, Florida. His regularly assigned work period extends from 8:30 A. M. to 11:00 A. M. and from 12:30 P. M. through 6:00 P. M.
The claimant was called and used to operate said drawbridge outside his regularly assigned hours from 7:15 A. M. to 7:30 A. M. on September 17; from 7:.50 A. M. to 8:05 A. M. on September 24; from 7:00 A. M. to 7:1.5 A. M. on Seatember 25 and from 6:45 A. M. to 7:00 A. M. on September 28, 1968. After completing said overtime service, he was off duty until the beginning of his regular work period.
Reports of extra time (Form 453) were submitted for a call of two hours and forty minutes at the time and one-half rate for the service thus performed during hours outside of and not continuous with his regular work period. Compensation for such service is controlled by the clear and unambiguous provisions of Rule 26 which reads:
Since you desire that a conference be held to go into the matter further, this is, of course, agreeable to me and Mr. Dick will be glad to discuss it with you. It is suggested that such conference be held in Room 523, Seaboard Coast Line Building, 9:30 A. M., Tuesday, February 11th. If that is not convenient to you, please suggest another time and date that would be suitable to you. You are assured that we are always glad to discuss any such matter with you.
As to your reference to this being a continuing claim, while we would not interpret such service requirements as arising with sufficient regularity to be classified as a continuing occurrence, we would not think of being technical with you about any matter. Therefore, we are agreeable to handling it as a continuing claim."
ASST. VICE PRESIDENT-PERSONNEL TO GEN. CHAIRMAN,
FEBRUARY 17, 1969
"Confirming conference discussion February 11th with Mr. Dick, at which Mr. Clark, Chief Engineer, was also present, concerning claim filed in behalf of Bridge Tender L. A. Burney on Octob::r 16, 1968.
The claim was handled as a continuing claim covering subsequent dates on which similar service was performed, and to complete the record Mr. Burney resigned from service in July 1969.
OPINION OF BOARD: In September 1968, Claimant was assigned as Bridge Tender at Buffalo Bluff, Florida drawbridge, with assigned hours 8:30 A. M. to 11:00 A. M. and 12:30 P. M. to 6:00 P. M., with lunch period 11:00 A. M. to 12:30 P. M., Monday through Friday. On the following dates-work days of Claimant's work week-Claimant was called to duty to open and close the drawbridge with the shown starting time and time of completion of each assignment:
Carrier paid Claimant at the overtime rate of pay from each aforesaid starting time to the starting time of his regular assignment, 8:30 A. M.
Organization filed claim on October 16, 1968, that Claimant was contractually entitled to pay for a call as prescribed in Rule 26, Call Rule of the current Agreement which was effective July 1, 1968. Further, it prays that Carrier be ordered to pay Claimant the difference between the amount he received and the amount he should have received under the Call Rule on the specified dates "and on all subsequent dates that he performs service under similar conditions."
We have approved payment of all the calls in question on a call basis (Rule 26), except those calls made between hours of 5:50 A. M. and 8:30 A. M., and my position is that these calls are for time worked continuously with and in advance of the regular work period of 8:30 A. M. to 11:00 A. M. and 12:30 P. M. to 6:00 P. M. (Rule 27, Section 2), and a claim for a call is not consistent with the current agreement. Your reference to Award 14070 by the Third Division of the National Railroad Adjustment Board is not applicable as it pertains to calls during bridge tender's lunch rest period." (Emphasis ours.)
According to my records, Mr. Burney is assigned as Bridge Tender at St. John's River Drawbridge with assigned hours 8:30 A. M. till 11:00 A. M., and 12:30 P. M. to 6:00 P. M., with lunch period between 11:00 A. M. and 12:30 P. M. We have issued instructions to all Bridge Tenders that when they are called to operate the drawbridge within 2 hours and 40 minutes of their assigned starting time they will remain on duty from the time they report until regular starting time and will be paid overtime in accordance with Rule 27, Section 2, which states in part: 'Time worked continuous with and in advance of the regular eight (8) hour work period: (a) if six (6) hours or less, will be paid at time and one-half rate until the beginning of the regular work period, and then at the straight-time rate during the regular eight (8) hour work period; . . .
It is Organization's position that: (1) The calls and the period of time Claimant engaged in each assigned task, admitted by Carrier, are such, as within Rule 26, Call Rule, fox which rate of pay is contractually prescribed therein; (2 ) no instructions had been promulgated to the employes, at times material herein, as alleged by Carrier; and (3) Award No. 14070, (1965), involving the parties herein, correctly interprets and applies the cited Rules albeit the Rules were then identically set forth in the preceding Agreement as we have cstablished, supra.
At the outset we distinguish between a "Call;" as generally understood in the industry, from "Overtime."
A "Call" is when a carrier, due to an unfoxseeable contingency, does in fact call an employe without previous notice to perform work not within his regularly assigned hours.
"Overtime" prior to an employe's regularly assigned starting time is generally directed by a carrier before or at the termination of his preceding work day. Requirement for such overtime work is forseeable by a carrier and the employe, having had reasonable notice, is obligated to comply. This is in contrast with a call with which the employe is obligated to comply without having reasonable notice affording him the opportunity to arrange his affairs. By a "Call" the employe is taken by surprise; "Overtime" is by plan. The contractual guarantee of minimum hours of pay at time and one-half is consideration for the disruption of the employe's scheduled free time and attendant inconveniences caused by an uncxpeeted "Call." It is this distinction which makes Award No. 6497, cited by Carrier in support of its position, inapposite in the resolution of the instant case.
Carrier's defense of "instructions" is without merit in that: (1) Organization denied "instructions" had been issued as alleged in Carrier's declaratory statements; (2) the defense is an affirmative one which vested the burden of proof in Carrier; (3) Carrier failed to satisfy its burden of proof by a preponderance of material and relevant evidence of probative value; specifically, it failed to adduce the "instructions" and prove the date, if any, on which promulgated to the employes.
In our Award No. 14070 we interpreted the Pertinent Rules (A, supra) and found and held:
We find that award dispositive of the issue herein presented in that it supports a finding that Carrier violated Rule 26 - Call Rule in the instant case. We reaffirm it with one exception not here material. We find that Carrier cannot abrogate Rule 26-Call Rule, in whole or in part, by unilateral issue of "instructions." That can only be effected through the process of collective bargaining. Carrier's alleged, but not proven, "instructions" would in effect suspend the Call Rule during a period of 2 hours and 40 minutes immediately preceding an employe's regularly assigned starting time. The Rule, as agreed to, does not permit the writing into it of an exception by Carrier's unilateral action through the guise of "instructions."
Organization's prayer that Claimant be compensated "on all subsequent dates that he performs service under similar conditions" must be denied. Should we issue such an order it would not be enforced by the courts because of lack of findings of fact by this Board, supported by substantial evidence, and uncertainty. The limited statutory authority of the courts is review of our exercise of jurisdiction and findings. The courts have no authority to sit as a trial tribunal to resolve disputes concerning which this Board has exclusive primary statutory jurisdiction. Nor can this Board resolve "subsequent"
disputes by interpretation. Our jurisdiction under Section 3, First (m) of the Railway Labor Act is limited to dispelling in fact existing ambiguities in an Award-new evidence or new issues may not be adduced or raised in such proceedings. Further, the "subsequent dates" prayer in paragraph (1) of the claim is not a continuing violation within the contemplation of Article V of the August 21, 1954 National Agreement.
For the foregoing reasons we will sustain the claim as to compensation for the four dates specified in paragraph (1) of the claim; and, we will deny the claim for compensation on "subsequent dates."
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
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
Claim sustained in part and denied in part as set forth in the Opinion, supra.
CARRIER MEMBERS' DISSENT TO AWARD NO. 18090
DOCKET NO. MW-18521 (Referee Dorsey)
Award No. 18090 is in serious error, is not supported by the record covering the handling of the dispute on the property, does violence to the clear provisions of the applicable Agreement, and we dissent.
It is well settled that a Carrier has the prerogative of assigning work and directing its work force in any manner not prohibited by the Agreement. As stated in Award 12358 (Dorsey):
Nothing in the Agreement applicable herein prohibited the Carrier from instructing the Claimant that when called within 2 hours 40 minutes of his assigned starting time he was to remain on duty until his regular starting time. The fact that he may not have actually worked during the entire period is immaterial. The fact remains that he was on duty and under pay. If the Carrier wanted him to remain on duty, that was its prerogative.
In the handling of the dispute on the property there was no denial by the Organization of the instructions referred to having been issued, or the timeliness of such instructions. The Referee erred in taking any cognizance of issues raised for the first time before the Board as the Board has repeatedly ruled that contentions or charges not made during the handling on the property cannot be considered in the determination of a dispute.
The factual situation herein was entirely different from that involved in Award 14070. In the dispute involved in Award 14070 the bridgetender, during his release period from 10:00 A. M. to 12:30 P. M. was called at 12:00 noon to operate the bridge, and released at 12:10 P. M. to resume his off-duty status until 12:30 P. M. The dispute covered by Award 18090 as handled on the property, involved time on duty in advance of the Claimant's regular 8-hour work period, with instructions to remain on duty continuous with his regular work period. Such service clearly comes within that part of Section 2 of Rule 27 reading:
The instructions issued by the Carrier in no manner abrogated Rule 26 in whole or in part. Rule 26 refers to "work not continuous with the regular work period." The Claimant herein, under the instructions referred to, was on duty continuous with his regular work period.
The attempt of the Referee to distinguish a "Call," as generally understood in the industry, from "Overtime" is dictum. The parties, in their Agreement, have set forth the conditions under which a "Call" is to be paid, i.e., when "notified or called to perform work not continuous with the regular work period" and when "Overtime" is to be paid, which, under the facts in our present case as developed on the property, was for "Time worked continuous with and in advance of the regular eight (8) hour work period:". These rules will continue in effect until changed by the parties, notwithstanding the dictum in Award 18090.