NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number TD-19708
Frederick R. Blackwell, Referee
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(Chicago and North Western Railway Company
STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:
(a) The Chicago and North Western Railway Company hereinafter
referred to as "the Carrier" violated the Agreement in effect between the
parties, Rule 5 (a) thereof in particular, when it failed to compensate Extra
Train Dispatcher R. D. Burt eight (8) hours at rate of one and one-half times
the basic straight-time rate for service performed on June 19, 1971 which was
work on his seventh day after working five (5) consecutive days as a train
dispatcher.
(b) The Carrier shall now compensate the individual claimant for
the amount of the difference between the pro rata rate allowed and the time
and one-half rate of trick dispatcher's position for eight (8) hours to which
he is entitled under the terms of the Agreement.
OPINION OF BOARD: This dispute arises under Agreement effective September
16, 1950. The record we will consider may not contain all
of the evidence that could have a bearing on the herein issues. Nonetheless,
it is possible to reach a decision on the merits on the basis of the record
before us and we shall do so.
FACTS
Claimant, an extra train dispatcher, worked on June 13, 14, 15, 16,
and 17, 1971, thus completing five consecutive days work as extra train dispatcher. He did not work
contends that claimant is entitled to time and one-half for June 19, 1971
under the third paragraph of Rule 5 (a) of the Agreement. Rule 5 (a) reads
as follows:
"REST DAYS - 5. (a) Each regularly assigned train dispatcher
WORK ON will be entitled and required to take two reg
REST DAYS ularly assigned days off per week as rest days,
except when unavoidable emergency prevents fur
nishing relief. Such assigned rest days shall
be consecutive to the fullest extent possible.
Non-consecutive rest days may be assigned only
in instances where consecutive rest days would
necessitate working any train dispatcher in
excess of five days per week.
A regularly assigned train dispatcher who
is required to perform service on the rest days
assigned to his position will be
paid at rate of
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Award Number 19549 Page 2
Docket Number TD-19708
time and one-half for service performed on
either or both of such rest days.
Extra train dispatchers who are required
to work as train dispatcher in excess of five
consecutive days shall be paid one and one-half
times the basic straight-time rate for work on
either or both the sixth or seventh days but
shall not have the right to claim work on such
sixth or seventh days."
The course of this claim on the property is indicated in correspondence between Mr. W. J. Freman
J. R. Brunmeier, General Chairman.
In denying the claim in a October 29, 1971 letter, Mr. Fremon
stated:
"The rule on which you base this claim provides in
part as follows:
'Extra train dispatchers who . , work
. . in excess of five consecutive days
shall be paid one and one-half times
...'
(Emphasis supplied)
Claimant Burt did not work in excess of five consecutive days as he did not perform service on J
18, 1971.
Inasmuch as the rule requires service in excess of
five consecutive days in order to be eligible for
the one and one-half time rate and Mr. Burt's sixth
day of service was not consecutive with the previous
five days, the rule does not support the claim.
While the train dispatchers' agreement apparently
does not spell out the work week of extra employee,
in other collective bargaining agreements on the
property it is definitely indicated that the work
week of an extra employs is seven consecutive days
commencing with Monday. Using this same 'rule of
thumb' to the circumstances in the instant case,
June 14, 1971 was a Monday and Mr. Burt worked on
that day, on the 15, 16, 17 and the 19th. This
would have provided him with five days of work in
the work week commencing on Monday, all of which
service would under the cited rules be at straight
time rate."
Award Number 19549 Page 3
Docket Number TD-19708
On November 24, 1971, Mr. Brunmeier stated:
"This is to advise that June 13, 14, 15, 16 and 17
were five consecutive days and that June 19, 1971
was certainly in excess of five consecutive days
in the seven day period beginning June 13, 1971."
After a December 10, 1971 conference, Mr. Fremon wrote the following
in a letter dated December 13, 1971:
"...
it is our position that in order to be entitled
to compensation at one and one-half times the straight
time rate an extra train dispatcher must meet all
requirements of the third paragraph of Rule 5 (a)
of the collective bargaining agreement; i.e., he must
perform service in excess of five consecutive days.
While in the circumstances in this claim claimant
Burt did work 5 consecutive days, he did not work
six consecutive days and therefore does not qualify
for the time and one-half compensation for service
performed on June 19, 1971."
In a letter dated December 23, 1971, Mr. Brunmeier stated that:
"...
the third paragraph of our schedule rule 5 (a)
most certainly was violated by the carrier in that
it plainly states that an extra train dispatcher
after having worked in excess of five consecutive
days shall be paid one and one half times the basic
straight time rate for work on either OR both the
sixth or SEVENTH days."
Both parties concede that Rule 5 (a) has its genesis in the National
Agreement of March 25, 1949. Article III, Section 1 thereof, reads as follows:
"ARTICLE III - THE FIVE DAYS WEEK
Section i. Rest Days
All existing agreements providing for one (1)
rest day per week shall be revised so that effective
September 1, 1949, they shall provide for two (2)
regularly assigned rest days per week. Such assigned
Award Number 19549 Page 4
Docket Number TD-19708
"rest days shall be consecutive to the fullest extent
possible. The carrier may assign non-consecutive rest
days only in instances where consecutive rest days
would necessitate working any train dispatcher in excess of five (S) days per week. Also, to provide
any regularly assigned train dispatcher who is required
to perform service on the rest days assigned to his
position will be paid at rate of time and one-half for
service performed on either or both of such rest days.
Extra train dispatchers who are required to work
as a train dispatcher in excess of five (5) consecutive
days shall be paid one and one-half times the basic
straight time rate for work on either or both the sixth
or seventh days but shall not have the right to claim
work on such sixth or seventh days.
Existing assignments reduced to a five (5) days
basis under this agreement shall not be considered
new jobs under bulletin rules and employes will not
be permitted to exercise displacement privileges as
a result of such reductions. However, employee will
be notified of their assigned rest days by the posting of notices."
CONTENTIONS OF PARTIES
Petitioner contends that the third paragraph of Rule 5 (a) has as
its basic purpose the establishment of rest days for an extra train dispatcher.
In order to provide two rest days per week for the extra dispatcher, five
consecutive days was established as a normal work week.
Carrier's position before the Board is that the paragraph requires
an extra dispatcher to perform service "in excess of five (5) consecutive
days" to qualify for time and one-half, and, since claimant did not work six
consecutive days, he did not qualify for time and one-half for working on
June 19, 1971, the seventh day.
RESOLUTION
The purport of Petitioner's argument is that the work week of an
extra train dispatcher has been fulfilled when he has completed five consecutive days work as a trai
occurs, the sixth and seventh days accrue to an extra dispatcher as rest
days; he does not have the right to claim work on such sixth or seventh day,
but if he works on either or both days, he shall be paid time and one-half
for such work.
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Award Number 19549 Page 5
Docket Number TD-19708
The essence of Carrier's argument is that the controlling rule
speaks lin terms of consecutive service and not in terms of a work week, and,
hence, a train dispatcher is entitled to time and one-half only for the
sixth and seventh day of consecutive service. In work week terms, this means
that an extra train dispatcher's work week is not fulfilled until he has
worked seven consecutive days so, in effect, an extra train dispatcher begins
a new work week whenever he works less than seven consecutive days.
Both arguments are based upon the third paragraph of Rule 5 (a)
which reads as follows:
"Extra train dispatchers who are required to work
as train dispatcher in excess of five consecutive
days shall be paid one and one-half times the basic
straight-time rate for work on either or both the
sixth or seventh days but shall not have the right
to claim work on such sixth or seventh days."
The term "in excess of five consecutive days" tends to support
Carrier's view that the language refers to at least one day of work in addition to "five consecutive
terme'of consecutive service, this further suggest that the text requires
six days of consecutive service to be fulfilled. And it is also true that
the text does not read "in excess of five consecutive days in the seven day
period", which is one way of stating Petitioner's position. Thus, the meaning
given the third paragraph by Carrier is plausible enough, so far as it goes.
On the other hand,when the third paragraph of Rule 5 (a) first
appeared in the National Agreement of March 25, 1949, Article III, it was
under a format which positioned such third paragraph as the second of three
paragraphs having the topical heading "THE FIVE DAY WEEK". This format is
consistent with Petitioner's contention that the third paragraph of Rule
5 (a) established a five day work week for extra train dispatchers. .Moreover, if the parties had in
qualifying period for time and one-half, it would have been simple enough
to use that terminology rather than the less clear term "in excess of five
consecutive days". In addition, under Carrier's poation, the part of the
third paragraph reading "shall be paid one and one-half times the basic
straight time rate for work on either or both the sixth and seventh days"
(emphasis supplied) would have to be read as meaning "for work on the sixth
day and also for the seventh day if both days are worked". However, the
word "either" means one or the other, so the plain meaning of the terminology
is to require time and one-half for work on the sixth day or for work on the
seventh day.
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Award Number 19549 Page 6
Docket Number TD-19708
Furthermore, Carrier's position does not harmonize with the third
paragraph requirement that an extra dispatcher "shall not have the right to
claim work on such sixth or seventh days". It is a fatal flaw, we think,
that, under Carrier's position, the extra dispatcher is the instant dispute
could have claimed the work he performed on June 19, the seventh day, but
could not have claimed work on June 18, the sixth day.
Award 15407 (Lynch) involved different parties but the agreement
therein contained a provision identical with the third paragraph of Rule
5 (a) herein. In that Award this Board ruled that an extra dispatcher could
not claim work on the sixth day. Carrier's position herein would also bar
an extra dispatcher from claiming work on the sixth day, so to that extent
Award 15407 is not inconsistent with thin Carrier's position. However, since
the Carrier in Award 15407 had paid the claimant extra dispatcher time and
one-half for the seventh day of work, prior to the dispute, we believe that
Award stands for the principle that an extra dispatcher could not claim work
on either the sixth or seventh day.
The extra train dispatcher in Award 15407 worked five consecutive
days, did not work the sixth, and then worked the seventh for which ha received time and one-half pa
day, and pay of time and one-half therefor, was denied by Carrier and sustained
by this Hoard.
The Employee' Statement of Facts in Award 15407 contains the following:
" . In declining the claim in a memo dated September
16, 1965, the Chief Dispatcher stated:
'Attached time card claiming 8 hours' punitive
for August 26, 1965, is being returned account
no basis for claim. Extra Dispatchers can not
claim the 6th or 7th day, but if used on either
6th or 7th day, they will be paid time and one
half. You were used on the 7th day and was
paid time and one half for this day. Claim for
time on August 26th is hereby declined."'
The opinion of the Award states the following:
"Article 3 (b) of the applicable agreement states
clearly, in its pertinent parts, that:
'Extra train dispatchers who are required to
work as train dispatcher in excess of five (5)
consecutive days shall be paid .., but shall
not have the right to claim work on such sixth
or seventh days. (Emphasis ours.)"'
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Award Number 19549 page 7
Docket Number TD-19708
This Board then stated:
"The agreement makes no exceptions on this point.
Neither can we."
Though we have noted that the sixth day was involved in Award
15407, we do not perceive how the Award would have differed if the seventh
day instead of the sixth had been involved. We also note that the above
quoted statement of the Chief Dispatcher coincides with Petitioners view in
the instant dispute.
In Award 12232 (Engelstein) this Board sustained a claim arising
from circumstances somewhat similar to the instant dispute. There, the extra
dispatcher worked five consecutive days; he then worked the sixth and seventh
days (July 16 and 17) for which he received straight time pay. In sustaining
the claim for time and one-half pay for the sixth and seventh day, this Board
said:
"Consideration, however, moat be given to the additional clause which completes this sentence of
rule,
...
'but shall not have the right to claim
work on such sixth or seventh days.' It is apparent from this entire sentence that Extra Train Dispa
choice which Carrier maintains Claimant exercised
by seniority on July 16 and 17. Extra Dispatchers
are not entitled to rest days unless they work five
consecutive days. The decision to work on the sixth
and seventh consecutive days rests not with the employee but with Carrier. If Carrier
requires this employe's services on those days, the
rule provides that he be awarded payment at time
and one-half rate for his work."
We recognize that this Award, too, is not directly in point with
the instant dispute. Nonetheless, the rulings in Awards 15407 and 12232
were made in the same broad general context as our dispute and we believe
we should treat them as authority for Petitioner's position.
For the reasons indicated above, and on the basis of Awards 15407
and 12232, we shall sustain the claim.
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Award Number 19549 Page 8
Docket Number TD-19708
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 violated.
A W'.4 R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
So 40
&WY/"1kX
-wit
Executive Secretary
Dated at Chicago, Illinois, this 10th day of January 1973.
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