NATIONAL RAILROAD ADJUSTMENT BOARD '
THIRD DIVISION Docket Number SG-20530
Irwin M. Lieberman, Referee
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Erie Lackawanna Railway Company
STATEMENT OF CLAD?: Claim of the General Committee of the Brotherhood of
Railroad Signalmen on the Erie Lackawanna Railway
Company that:
(a) Carrier violated Rules 17, 25, 66 and past practice of
the Signalmen's Agreement dated. March 1, 1953, when it refused Signal
Maintainer R. E. LaFollette compensation for taking physical examination at the Carrier's request on
(b) Carrier should compensate Mr. R. E. LaFollette for two
hours and forty minutes at the time and one-half rate of pay.
(Carrier's File: 212-Sig.)
OPINION OF BOARD: Claimant was a Signal Maintainer with regular hours
of 11:00 P.M. to 7:00 A.M. He was advised to schedule
his annual physical re-examination. He arranged to take the physical examination on Wednesday, July
Claimant filed a claim for a call (two hours and forty minutes) stating
that he was unable to take his physical during his regular tour of duty.
Petitioner relies on the following rules in support of the Claim:
"RULE 17. Employes released from duty and notified or
called to perform work outside of and not continuous with
regular working hours will be paid a minimum allowance of
two (2) hours and forty (40) minutes at the overtime rate;
if held longer than two (2) hours and forty (40) minutes
they will be paid at the overtime rate computed on the actual
minute basis. The time of employes so notified will begin
at the time required to report and end when released. The
time of employes so called will start when they report and end
at the time they return to designated point at home station."
"RULE 25. ATTENDING COURT, ETC. - Employes attending court,
inquests, investigations or hearings as witnesses or performing other special service for the compan
Award Number 20632 Page 2
Docket Number SG-20530
"assignment, except that employes assigned rest days,
if used on that particular day or days will be allowed
eight (8) hours pay at time and one-half rate for each
day so used. Employes called for such service outside
of regular assigned hours will be compensated in accordance with Rule 17. Actual expenses will be al
away from home station or headquarters. Any fees or
mileage for such service will be assigned to the railroad
company."
"RULE 66. Such examinations or re-examinations on rules
and/or regulations as employes may be required to take
will, if possible, be conducted during regular working
hours without deduction in pay therefor. Where conditions
do not permit the taking of such examinations during regular working hours, employes will be paid wh
as if working."
It is argued that Rule 66 is applicable since Claimant was required to take the physical examina
Further, Petitioner contends that taking a physical examination is the
type of special service contemplated by Rule 25. It is also argued that
it has been the past practice to pay employes under similar circumstances.
Awards 1'.929 and 19989 are cited in support of the organization's position.
It is argued that Claimant was following a company order and should have
been compensated for the time involved; furthermore there is nothing in
the rules cited (17, 25 and 66) to indicate that the parties had agreed
to exclude local physical examinations.
Carrier argues that the physical re-examination is a condition
of employment and does not constitute work. Under the specific terms of
the Agreement, the only time an employee is entitled to compensation is
when he is required to report to the Carrier's Chief Surgeon at Cleveland
for a re-examination. The pertinent language of the Understanding on
Physical Re-examination provides as follows:
"UNDERSTANDING ON PHYSICAL REEXAMINATIONS
Erie Railroad requires certain physical reexaminations.
Effective September 1, 1948, when an employe is directed
by the company to report to the Chief Surgeon at Cleveland, Ohio, for reexamination, he will
the railroad company for any reasonable traveling expenses
incurred in the trip. When an employe loses pay in traveling to or from the Chief Surgeon's Offi
he will be allowed compensation, exclusive of overtime (not a
part of regular assignment) or other arbitrary payxieats, for
each day on which pay is lost.
Award Number 20632 Page 3
Docket Number SG-20530
"These payments for traveling expenses and wage loss incurred will not be made when reexaminatio
Surgeon's office is at the request of the employe or his
representative or results in disqualification."
Carrier states that in the instant case, Claimant suffered no wage loss
and any payment to him for the time spent is contrary to the explicit
language quoted supra with respect to re-examinations. Carrier also
denies the contention with regard to past practice.
The issue involved herein is not new. In a similar situation,
the Board in Award 2828 stated:
"...to recover overtime pay for off duty time spent in
taking a physical examination we believe the true rule
is that such right must be found from express language
appearing within the four corners of the contract itself,
or from language appearing therein from which an inference
to that effect is reasonable to be drawn, or it does not
exist."
The same denial position was maintained by the Board in a series of following cases including Aw
1370. Awards 17929 and 19989 cited by Petitioner are not pertinent in that
in both of those cases Claimants lost pay as a result of taking a physical
examination during working hours.
In the case before us we find no rule support whatever for
Petitioner's position, particularly in view of our consistent position
that there was not "work" involved in the taking of the physical examination. We do not accept the a
local physical examinations they are covered by the specific rules cited
by the Organization; this argument is deficient in interpretative logic.
Further, there is no evidence to support the contention of past practice.
In view then, of the lack of rule support for Petitioner's position, and
in the light of the well defined position of the Board in prior similar
disputes, the Claim must be denied.
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;
Award Number 20632 Page 4
Docket Number SG-20530
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
/~ By Order of Third Division
ATTEST:
~1/v
p~/~
Executive Secretary
Dated at Chicago, Illinois, this 7th day of March 1975.
-
ItA