STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Division, BRAC, on the Duluth, Missabe and Iron Range Railway, that:
An Agreement between the parties, effective January 1, 1963, as amended and supplemented, is available to your Board and by this referencc is made a part hereof.
This claim was timely filed, progressed under the provisions of the Agreement to the highest officer designated by the Carrier to receive appeals, including conference, and has been denied.
This claim arose when Carrier refused to compensate an extra employe for time in excess of one hour spent waiting for his shift to start.
The status of the Claimant at the time these claims arose was that of an extra telegrapher. The assigned hours of the position in issue were 10:30 P. M. to 6:30 A. AT.On the dates of the claims he was required to
In accordance with these rules, the claimant was compensated on each of the dates of claim, as follows:
Copies of the correspondence involved in the handling of the claims on this property are attached and marked as Carrier's "Exhibit A."
OPINION OF BOARD: The facts are clear and not in dispute. Claimant, an extra employe, was properly directed by Carrier to travel 100 miles from his headquarters and work two tours of duty. The regular shift started at 10:80 P. M. and extended to 6:30 A. M. However, it was necessary to work a "call" of two hours from 6:45 P. 117. to 8:45 P. \1. Claimant was properly compensated for the time spent-in excess of one hour-in travel to the location of his work assignment; he was properly paid for the two hour "call" and he was properly paid for working the regular shift. He was not paid anything however, for the one hour and forty-five minutes between completion of the "call" at 8:45 P. M. and the beginning of the regular shift at 10:30 P. M.
The applicable rules in this case are Article 5(a) of the agreement between the Duluth, Missable and Iron Range Company and employes represented by the Transportation-Communication Division of the Brotherhood of Railway and Airline Clerks, and Section II(D) of the Award of Arbitration Board No. 298. They are quoted as follows:
After careful study of the record and the Agreement it is clear that this Board has jurisdictional responsibility over the dispute involved herein.
We have studied the argument that special provisions regarding travel by private automobile take precedence over more general provisions. However, this Board must assert that all language of the Agreement must be read in context and given reasonable effect. Mindful that effect should be given to the entire language of the agreement, we are concerned with the intent of the rule.
Our study indicates that time spent at the direction of the Carrier is compensable under the rule. Award No. 15 of Public Law Board No. 429 would add weight to our finding. The decisive factor in that case was that the Claimant could not have returned to his headquarters during the time between the two work periods and thus the time was necessarily spent in waiting for his shift to start.
In the instant case, the Claimant was waiting for his regular shift to start after working the "call". We are persuaded that Claimant was required to remain, was held at Carrier's discretion and after careful study of the record, Agreement, Award of Arbitration Board 298 and Award No. 15 of Public Law Board No. 429 we find the claim is valid and should be sustained.
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
Manifestly, the "sand-by service" involved in this Division's early Award 1675 is something entirely distinct, supported by agreement provisions totally unrelated to travel-and-waiting time provisions of the Award of Arbitration Board 2°8. As we have already noted, Carrier defended the claim on the basis th :t the arbitration :ward wad applicable and did not provide for the payment claimed. The essence of Carrier's position in that case is stated as follows in "Position of Carrier" therein:
The first paragraph of the Opinion correctly states the essential facts of the case, most essential of which is that the time involved in the claim is the period "between completion of the `call' . . . and the beginning of the regular shift . . :' We are thus dealing with a period of time when Claimant was admittedly at his next work location, having completed a "call" shift there, he was waiting for a "regular" shift to commence there.
Neither the award of Arbitration Board No. 298 nor any rule of the agreement expressly provides that an employe shall be paid for time spent waiting between shifts at a location where his next service is to be performed, yet the Opinion concludes: "Claimant was required to remain, was held at Carrier's discretion and after careful study of the record, Agreement, Award of Arbitration Board 298 and Award No. 15 of Public Law Board No. 429 we find the claim is valid . . .
The absence of any provision in the agreement or the arbitration award for payment for off-duty time between shifts at the same work location, plus the absence in the agreement or the arbitration award of any reference to an employe who is "required to remain" or "held at Carrier's discretion;" plus the reneated reference to Award 15 of Public Law Board 429 which does deal with time held waiting between shifts and which does contain these quoted expressions, all compel us to conclude that the Opinion is based squarely on Award 1 > and must be read in light of the issues actually presented and decided in that award.
Award 15 indicates on its face that the carrier in that case asserted a defense based on the award of Arbitration Board 298, and that defense was expressly rejected. Unfortunately, however, Award 15 does not disclose on its face the contractual basis for allowing the claim therein, and at first blush it may appear that the Board was interpreting and applying undisclosed provisions of the arbitration award; but the record in that case make.; it perfectlv clear that the allowance of the claim was based on a rejection of the carrier's attempt to bring the arbitration award into the case as a defense and the acceptance of other authorities cited b;: the employer. The arbitration award was neither interpreted nor applied.
While the record in Award 15 ha,l no; been fit, d with the NEAT Administrative officer at the time this claim was being considered, and the Carrier Members did not then have access to the same, we have since learned that the entire "Position of Employees" in that case reads as follows:
Thus, Carrier's defense based or. the arbitration award itself was rejected. The case was decided expressly on the premise that claimant was entitled under all of the agreement rules cited by the Employes to pay because he was "required to remain, was held at Carrier's discretion". It is clear that Award 15 neither interpreted nor applied the arbitration award.
A conclusion that Beard 429 was neither interpreting nor applying the arbitration award in its Award 15 is fu^ther substantiated by the fact that the claimant therein traveled in his autnmobilc, and in its Award 1, Board 429 ruled that the parties to that board had substantially changed the terms of the arbitration award when they incorporated them into their collective agreement, with the result that an interpretation of the arbitration award by Arbitration Board 298 concerning traveling and waiting time of employes traveling in their automobiles was not applicable on that property.
Thus, we conclude that the opinion in this award, being based on Award 15 of Public Law Board 429, neither interprets nor applies the arbitration award, and thus does not run afoul of the consistent rulings of this Board and the Federal courts on the point that the interpretation of an arbitration award made pursuant to the Railway Labor Act is the exclusive function of the arbitration board that rendered the award. See Awards 8039 (Elkouri) and 17845 (Dolnick) which expressly recognize this Board lacks jurisdiction to interpret an arbitration award made under the Railway Labor Act, and compare Awards 13314 (Hamilton), 15940 (Heskett), and others, which expressly abstain from interpreting an arbitration award and recognize the distinction between interpreting the provisions of such an award on the one hand and determining whether there exists given facts calling for the application of undisputed provisions of the award on the other hand. Arbitration boards have refused to resolve such questions of fact and have refused to interpret rules not contained in their awards.) Also see Western Air Lines, Inc. v. Labor Commissioner, Etc., 167 F.2d 566; Certain Carriers, Etc., 240 F.Supp. 290; and Certain Carriers, Etc., and BRT v. CMSt.P&P RR Co., Etc., 248 F.Supp. 1008, affd. 380 F.2d 605, cert. den. 389 U. S. 928.
We respectfully submit that the Referee gravely erred when be concluded that the record before us in the instant case supports the conclusion that the Claimant was "required to remain" or was "held at Carrier's discretion" during the period of time involved and hence he rendered service to Carrier during that period. Petitioner certainly submitted no evidence to that effect. Carrier has made no admission to that effect as did the
carrier in Award 15. We find nothing in the record that justifies the conclusion that Claimant was not off duty and entirely free to spend the time as he saw fit between these two shifts; and no rule or award has been cited that would require Carrier to compensate him for his time under these circumstance;. For these re:Asons we respectfully submit that the award is palpably wrong and should not be enforced.
ANSWER TO CARRIER MEMBERS DISSENT TO
AWARD 18381, DOCKET NO. TE-18501
The Carrier Members dissent, being a vicious distortion of fact and an improper invitation to the Carrier to ignore the Board's order to make the award effective, requires this rather detailed reply:
The simple facts giving rise to the dispute are clearly and correctly stated in the first paragraph of the Opinion of Board. The author of the dissent recognizes this fact in the first paragraph of his dissent. However, with characteristic sophistry, in the next breath he seeks to distort those facts by treating the "call" as being essentially unrelated to claimant's assignment to work on the days in question. He attempts to make the "two tours of duty", referred to in the award, synonymous with "two shifts", involving an implied waiting period between shifts.
'this obvious ottempt to distort the fact: falls of its own weight. The claimant teas required by the Carrier to travel 100 miles and work the 10:30 P. M. to (i:30 A. ill. "shift" at Two Harbors. In addition, he was required to arrive at the work location in time to work a "call" of two hours beginning at 6:45 P. M. The time between completion of the "call" and the beginning of the "shift" clearly constituted time spent by the claimant waiting for his "shift" to start. Payment for such waiting time is provided for by the rule, and it was Carrier's failure to comply which precipitated the dispute.
The word "shift" was officially interpreted many years ago to mean a (lay's work of normal duration, or eight hours. (Interpretation No. 4 to Supplement No. 13 to General Order No. 27, United States Railroad Administration. Washington, April 30, 1919). The word "Call" connotes a work period in addition to, and outside of the hours of the "shift" to which the employe is assigned. It arose from agreement rules requiring minimum payment for a "call to duty" outside the hours of the "shift".
The m^ndacion attempt to make a "shift" of the "call" here involved points up the basic fallacy of the Cnnrrier Members argument. Since only one "shift" was involved each day the claimant had to be waiting for that shift to start and was entitled to the payment provided. We wonder how this same Carrier Member would react to a chin, by a telegrapher for two
days' pay for working two "shifts" on the same day when one was in fact a "call".
The dissenter goes to great lengths m an effort to establish error because of the citation of Award 15, Public Law Board No. 429. This effort provides a perfect example of the classic "straw man" fallacy. This Award was cited to the Referee by the Labor Members not as direct, controlling precedent, but as persuasive authority in support of the claim and of the Employes' understanding of the intent of the rule. And no amount of skillful sophistry by the dissenter can change the fact that Award 15 rejected the carrier's argument that "under Award No. 298 it has no requirement to pay the claim".
The Referee in Award 18381 did not err in citing Award 15 of P.L. Board No. 429. The two decisions are in harmony and correctly reflect the intent of the rule.
With disarming brevity the dissenter refers to his contention that "this Board lacks jurisdiction to interpret an arbitration award made under the Railway Labor Act (Penultimate paragraph). This contention, however, constitutes a major part of the dissenter's attempt to defeat the claim, and thus requires an extended rebuttal to set the record straight here, as well as to provide reference; for future use if similar improper contentions are advanced.
The basis for the contention lay in a provision of the Arbitration Agreement, which resulted in the rule in question, for review and a ruling by the .arbitration Board if any difference of opinion as to the meaning or the application of the award should arise. This provision was not made as a result of voluntary agreement between the parties. It is a mandatory requirement of the Railway Labor Act, Section 8(m), and thus appears in all agreements to arbitrate under this law.
The dispute decided by Award 18381 arose by reason of the Carrier's failure to pay claimant the full amount due under a rule which resulted from Arbitration Board No. 298. Neither party raised anv question of the jLrisdiction of the Adjustment Board in their four submissions to this body. No such question was raised by any member of this Board up to and including the "panel discussion" with Referee Quinn.
After that discussion was concluded on July 20, 1970, however, the Carrier Member of the "panel", apparently perceiving the merit of the Employee' position, began casting about for some means of overcoming that position. On the same day he submitted what he called a "revised" page of his brief to "correct an error". This revision served to change the thrust of his argument, but still there was no challenge of the Board's authority to consider and decide the dispute.
Then, before the Reforee submitted a proposed award the author of the dissent deman(led an opportunity to discuss the case further. Although this was extremely unsusual if not unprecedented, the demand was granted. During this discussion with the Referee, which took palce on September 8, 1970, the dissenter, in addition to expansion of his earlier arguments, raised for the first time a contention that because the rule resulted from arbitration this Adjustment Bear(! lacks ,jurisdiction to render a decision. This ;:on-
tention ryas rebutted orally by reference to Award 13314 and the Labor Members' arguments therein.
The contention was rejected in the proposed award submitted by Referee Quinn on September 10, 1970. The dissenter then effectively blocked adoption of the proposed award, and later requested a re-argument. This request was granted and implemented on January 18, 1971. The same contentions were repeated in amplified form. The rebuttal was similarly repeated. Still the dissenter was not satisfied. On the following day, January 19, 1971, he demanded a further discussion, and presented another written argument. The less said about this encounter the better.
The Referee obviously considered very carefully both the contention and its rebuttal. He quite properly declined to change the proposed award, and it was finally adopted on January 29, 1971.
Becau.:,, of the extreme position taken by the author of the Carrier illembers' dissent, and the possibility of similar efforts being made in the future to persuade referees that this Board lacks jurisdiction to decide disputes iavolving rules arising from arbitration proceedings, it appears necessary to consider the point in some depth.
The Railway Labor Act recognizes two main types of disputes: (1) Major disputes relate to formation of agreements, matters of interest; and, (2) Dlinor disputes involve application of agreement provisions to specific fact situations, matters of right.
The Act provides, with respect to major disputes, for voluntary collective bargaining about matters of interest so that agreements-providing specific rights-.may be reached. If these unassisted efforts fail to result in agreement, the Act provides for mediation under the auspices of the National Mediation Board. If agreement is reached in this manner, the written accord is identified as a "mediation agreement" attested by the mediator involved. Provision is made by the Act, Section 5, Second, for interpretation by the Mediation Board if a "controversy arises over the meaning or the application of such agreement".
If no agreement results from mediation, procedures are provided for voluntary arbitration, Section 7 of the Act. Such procedures, if utilized by the parties, require a binding agreement concering the specifics to be affected. And one of the mandatory requirements of such an agreement is that it must contain a provision for interpretation by the Arbitration Board in case of a controversy arising over the meaning or the application of the provisions of the award to be made by such Board, Section 8(m) of the Act.
It must be emphasized that arbitration of major disputes is not compulsory. But when agreed to, this procedure results in rules or provisions precisely the same as if they were arrived at in mediation or by unassisted bargaining of the parties.
Once an agreement is reached, disputes about its provisions as applied to every-day fact situations are termed minor disputes, subject to the decisional procedures and jurisdiction of the Adjustment Board if the parties themselves fail to resolve them. It is well settled that jurisdiction of the Adjustment Board is exclusive and may not be encroached upon even by
the courts. (Special Boards of Adjustment, provided by the Act are merely extensions of the Adjustment Board). Slocum v. Delaware, Lackawanna & Western RR (339 U.S. 239).
What, then, is the purpose of the requirement in the Railway Labor Act for interpretation by the Mediation Board of Mediation agreements, and by Arbitration Boards of Arbitration awards? It must be noted that the provisions of Section 5, Second, and Section 8(m) are essentially similar, and certainly have the same intent as to the purpose to be achieved.
The Mediation Board, in its annual reports, deals specifically with this question. We quote from the current "Thirty-Sixth Annual Report of the National Mediation Board", pages 39 and 40:
In harmony with this sound doctrine the Adjustment Board has many times decided "minor disputes" involving rules arrived at by means of arbitration. A few examples are Third Division Awards 4967, 13314, 14268, 14269, 14270, 14271, 14407, 16111, 16156, 17486. In some of these cases, as 4967, no question of the Adjustment Board's jurisdiction was raised. In others, as 13314, arguments similar to that of the dissenting Carrier Members here were considered and rejected.
It thus becomes abundantly clear that the only "palpable error" in connection with Award 18381 is the dissent, which of course has no official standing in any event.