Award No. 18369
Docket No. SG-18527
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
John B. Criswell, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILROAD SIGNALMEN
SEABOARD COAST LINE RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of the
Brotherhood of Railroad Signalmen on the Seaboard Coast Line Railroad
Company:
(a) Messrs. F. H. Clay and J. W. Noisier be paid for seven (7)
hours each at their respective overtime rates of pay, in addition to
any compensation they have already received for February 5, 1968,
for overtime hours worked that date away from their assigned territory and headquarters.
(b) Messrs. H. B. Miles and M. C. Barber be paid for seven (7)
hours each at their respective overtime rates of pay, in addition to
any compensation they have already received for February 5, 1968,
for Carrier's using employes their junior, Messrs. F. H. Clay and
J. W. Neisler, to perform overtime work in connection with installation of switch machine at Jacksonville, Florida.
(Carrier's File: 15-16)
EMPLOYES' STATEMENT OF FACTS: As is indicated by the correspondence atttached as our Exhibits Nos. 1 through 7, this dispute was
handled in the usual and proper manner on the property by the Brotherhood,
up to and including the highest officer of the Carrier designated to handle
such disputes, without receiving a satisfactory settlement.
There is an agreement in effect between the parties to the dispute, bearing an effective date of July 1, 1967, as amended, which is by reference thereto
made a part of the record in this dispute. Particularly pertinent and controlling rules of that Agreement are:
"RULE 16.
(c) When overtime service is required of a part of a gang, the
senior qualified employes in the class involved shall have preference
to such overtime if they so desire."
and does not lend any support to their claim or the claim of Messrs.
Miles and Barber. Note they stated they were instructed by Foreman Johnson 'to deliver a new switch machine to Jacksonville, Fla.'
This confirms the factual statement in Mr. DePriest's letter of April
18, 1968, as to their being instructed to deliver the replacement switch
to Jacksonville-they were not instructed to wait and install it.
Note their further statement that when they reported to Supervisor's office at Jacksonville 'the two Maintainers were out, and we
waited until around 2:00 P. M. for their return.' This confirms the
fact that they were not instructed to install the machine; that they
could have returned to Ocala during regular working hours; that they
were not instructed to install the switch machine-it would be most
unusual for them to do so (they had never installed one) and such
installation would be Maintainer's work; that they waited at Jacksonville for the Maintainers and then accompanied them to the installation location at Stockton Street of their own accord and volition, as stated by Mr. DePriest. As to their statement that the replacement machine brought by them from Ocala 'was found to be improperly wired', they failed to state the fact that such was due to
their not doing a complete job in converting the machine at Ocala
from left hand to right hand operation (the wiring to the machine
motor had not been changed when converted). Their statement shows,
in addition to paying Maintainers Harter and Shearin overtime, it
was necessary for the Supervisor to come out and check the machine.
None of the extra work would have been necessary if they had properly performed the work on the machine at Ocala.
The record clearly establishes that Messrs. Clay and Neisler
were instructed to deliver the replacement machine to Jacksonville,
and they were not instructed to stay at Jacksonville and install the
machine or assist in its installation. Their failure to get back to
Ocala by 5:00 P. M., February 5th, was due to their own actions.
As the record shows, no overtime was contemplated at the time
these men were sent to Jacksonville with the switch machine, and
they were not instructed to install or help install the machine at
Jacksonville. They could not create an overtime situation by their
own actions and have a valid claim for overtime pay. As set out in
the record, it was proper to have them deliver the switch machine
and they are monthly rated men whose monthly rate is 'compensation
for all service rendered: There can be no question about the meaning
of such provision, as conclusively shown by the Third Division Awards
cited in our letter of June 6, 1968, particularly Award 15172.
Therefore, I can only reiterate that there is no merit to their
claim.
Your assumption as to the application of the six months extension
of time granted is correct."
(Exhibits not reproduced.)
OPINION OF BOARD:
Claimants Clay and Neisler were instructed to
perform certain work on a switch machine at Ocala, Florida, and deliver it
to Jacksonville, Florida -a movement that Carrier contemplated could be
done within the eight-hour day.
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Claimants, however, stayed at Ocala for several hours and into an overtime situation because of waiting, rewiring and installing the machine. Carrier
contends it did not instruct Claimants to do the additional work and to remain
belond delivering the machine.
This Board has many times held that voluntary performance absent
direction or authority cannot be used for basis of claim. And, we so find in
this case.
It is the contention of the Organization that the claim should be paid
under a memorandum of agreement dated June 6, 1967. We do not know how
it might be construed in other cases, but base our decision on the Organization's failure to convince this Board the men acted under proper authority
when they continued to work the overtime.
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 21,1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 29th day of January 1971.
LABOR MEMBER'S DISSENT TO AWARD 18369,
DOCKET
SG-18527
The Majority, Carrier Members and Referee, have in Award 18369
upheld the Carrier in its cause to escape both the letter and the intent of
its Agreement with its employes and in its imposition upon them.
The Majority premise their Award on the holding that the Claimants
performed voluntary labor-this in acceptance of the Carrier's statement
that it did not instruct Claimants to do additional work and to remain beyond
delivering the subject switch machine. However, the facts as set out by the
Carrier in its Ex Porte Submission do not support the Majority's holding.
The Carrier states that " * * * the Foreman instructed them to so convert
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the available switch machine to right hand operation and then deliver it to
Jacksonville * * * When installed the machine would not properly function "° * * " It is not only customary, but indeed mandatory in railroad
signaling that all work be tested after being performed to determine if it
has been properly done and that the apparatus properly functions. It is
apparent that such tests could not be made (because obviously they were
not made) at the Carrier's shop in Ocala, but had to be made in the field.
It is, therefore, also apparent that the Carrier's statement that "* * * they
remained at Jacksonville of their own volition to accompany the Maintainers and observe their installation of the switch machine * * * " is designed
to mislead.
Finally, it is shown that the Carrier's Supervisor knew of the Claimants'
presence and in fact was at the work scene. Even if we were to accept the
Carrier's statement that the Claimants were not required to remain in Jacksonville, the Majority's Award upholds the Supervisor's "laying behind a
log", entrapping the Claimants into performing work for which the Carrier
would unconscionably refuse to pay them.
Award 18369 is in error; I, therefore, dissent.
W. W. Altus, Jr.
Labor Member
Keenan Printing Co., Chicago, III. Printed in U.S.A.
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