NATIONAL
RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number
CL-21306
William G. Caples, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Chicago, Milwaukee, St. Paul and Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
(GL-7891)
that:
1. Carrier violated the Clerks' Rules Agreement at Deer Lodge,
Montana when it improperly deducted pay from employe E. K. Humphreville's
paycheck.
2.
Carrier violated the Agreement further when it failed to
disallow her claim for sick pay within 60 days from the date same was filed
and therefore cannot now do so by making the improper payroll deduction
described in Item 1, above.
3.
Carrier shall be required to compensate employe E. K. Humphreville
a total of
32
hours pay improperly deducted from paychecks dated March
15,
March
31
and April
30, 1974.
4. Carrier shall be required to compensate employe E. K. Humphreville
a total of
24
hours pay improperly deducted from paychecks dated May
15,
May
31,
and June
15, 1971+.
5.
Carrier shall be required to compensate employe E. K. Hamphreville
8
hours pay improperly deducted from her paycheck dated July
15, 1974.
OPINION OF BOARD: Claimant is the regularly assigned occupant of Relief Clerk
Position located in the Yard Office at Deer Lodge, Montana,
Seniority District No. 44, and has a seniority date of October
2, 1969.
Claimant,who prepared her own pavrolls for submission to the
Payroll Department which in turn processed them for the preparation of paychecks,
claimed the following time lost because of illness on half monthly payrolls:
March
12, 1973
March
20, 21, 1973
May
7, 8, 9, 1973
August 1,
1973
August
29, 1973
October
23, 1973
December 4,
5, 1973
January
23, 1974
These claims for time lost because of sickness were reflected in subsequent
paychecks.
Award Number 21472 Page 2
Docket Number CL-21306
By letter dated February 26, 1974 the,Carrier's Superintendent
advised Claimant:
"This letter is to advise, effective March 15, 1974, in
accordance with B.R.A.C. Agreement, Memorandum No. 2,
Paragraph 'E', there will be a deduction of 8 hours
from each half until sick days paid in 1973 are
recovered, which are as follows:
8 hours 3-12 Position 76520 at $4.6985
8 hours 3-20 Position 76460 at 4.6985
8 hours 5-07 Position 76520 at 1+.7985
8 hours 8-01 Position 761+60 at 1+.7985
8 hours 8-29 Position 76+60 at 1+.7985
8 hours 10-23 Position 76+60 at 1+.7985
8 hours 12-04 Position 76460 at 4.7985
1974
8 hours 1-23 Position 761+60 at 4.9944"
Such deductions were subsequently made as stated in the letter.
The Brotherhood filed claim that such deductions were (1) improper
as violations of the Clerks' Rules Agreement per se; (2) because Carrier had
failed to disallow the claims for sick pay within 60 days from the date "same
was filed" and cannot do so by making improper payroll deductions and (3)
Carrier should be required to compensate Claimant for the amounts deducted.
Carrier Alleges Claimant was not entitled to sick pay on any of
the days for which pay was originally shown on a paycheck and later deducted
on another, specifically March 3, 20, May 7, August 1, 29, October 23,
December 4, 1973 and January 23, 1974; each of which as an original claim was
shown as the first day of an illness and because of a Memorandum of Agreement
No. 2, commonly identified as the sick leave agreement, which contains
the following section:
"(E) Employes who have less than five years' seniority
as a clerk will not be paid for the first day absent on
account of sickness."
Carrier asserts it was not liable for pay on any of those days because
Claimant was not entitled to first days of absence on account of sickness
until October,2, 1974. The carrier alleges the payments were made by virtue
of an error in the payroll and when discovered the Carrier was entitled to
correct the error through payroll deduction.
Award Number 21472 Page 3
Docket Number CL-21306
The Brotherhood, without conceding the method for recovery, in
fact claiming it is improper although not citing wherein it violates the
Agreement, argues that (a) once a determination is made by the Carrier on
a "sickness" claim by any means it cannot unilaterally change such determination and ask to recoup m
being that part of Memorandum No. 2 which says:
"Payment for time lost because of 'sickness' need not be
paid for a period of thirty (30) days after the employe
returns to work."
is in effect a statute of limitation on the Carrier's actions; (b) the
Agreement contains no provision for reclaim or recovery. The Board accepting
this assertion also believes there is nothing in the Agreement to prevent
it when an error is discovered within a reasonable time and the party moving
to correct the error does so without being capricious or acting in a manner
which would be damaging beyond the amount of money at issue.
In view of the foregoing it appears to this Board that the Carrier
once its error was discovered moved to regain its loss in as expeditious a
manner as possible, believing in Carrier words "it is more reasonable to
recapture overpayments by recapturing one day at a time from one paycheck at
a time, which in this manner would not cause claimant an undue hardship."
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 Employee 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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 31st day of March 1977.
LABOR MEMBER'S DISSENT
TO
AWARD 21472 (Docket CL-21306)
(Referee Caples)
Award 21472 is in palpable error. That it is without
precedential value and will not be followed by more experienced referees is manifest in Award 21496
fifteen days later when a similar improper deduction case
was considered by the Board, wherein we held:
"The Organization contends that Claimant had an understanding with Trainmaster Lockwood and with Ass
Superintendent Mobley to the effect that he would be
entitled to a call plus mileage each time he made a
trip to Wellington. The record further establishes
that Claimant turned in time tickets for a call each
day that he went to Wellington, which time tickets were
approved and paid by the Carrier up to August 2, 1974.
On August 2, 1974, however, Superintendent J. W. Thomas
wrote Claimant that there was nothing in the controlling Agreement to warrant the call for his trip
Wellington. Thereafter, Carrier deducted the money -
that had been paid to Claimant for each call on and
after April 1, 1974. The Organization insists that
Carrier arbitrarily deducted the money paid to Claimant
for making the trip to Wellington, and they herein
request that Claimant be reimbursed this amount deducted.
"It is significant to note that nowhere in the record has
Carrier denied the existence of an understanding between
Claimant and Trainmaster Lockwood and Assistant Superintendent Mobley assuring that Claimant would b
call for each trip that he made to Wellington. Moreover,
between April 1, 1974 and August 2, 1974, each time
ticket submitted by Claimant in which he claimed the
call was approved and paid by the Carrier without a word
of protest from them. For the Carrier to now reclaim
the compensation previously allowed Claimant _would
indeed be an arbitrary act on their part as alleged by
the Organization. It is readily apparent from the record
at hand that Carrier's officials knew of the service
Labor Member's Dissent
to Award 21472
"performed by Claimant at Wellington and willingly
acquiesced in paying him a call for this service.
If they believed that such payment lacked support in
the pertinent Agreement then they should have dis-
allowed it when Claimant submitted his time tickets.
For them to now reclaim the payments previously
allowed strikes this Board as an unconscionable and
arbitrary act. Accordingly, we shall sustain the
claim." (Underscoring ours.)
Award 21472 is wrong and I dissent.
J.
(A
C. FLE=-PTR
Labor Member
!U'~ ? _, 1~.;7
`! J B
-2-
CARRIER MIBERS ' ANSWER
' LABOR btr.~ERS' DISS'MIT
TO
' AS&RD 21472 (Docket CL-21306)
(Referee Caples)
Comparing O'Brien's Award 21496 with Award 21472 is akin to saying
an amoeba is an elephant.
The quotation from Award 21496 in the dissent clearly proves that 'an
understanding was in effect between Claimant and the Trainmaster and
Assistant Superintendent assuring that Claimant would be paid a call
for each trip he made. That understanding was never denied by Carrier.
On the other hand, the Claimant in Award 21472 prepared her own timeroll and sent it to the Acco
Superintendent. On her timeroll she claimed sick pay in each instance
for the first day, despite the fact that the Agreement clearly precludes payment for the first day.
When the Superintendent discovered what Claimant was doing, he immediately put a stop to it, and
which the Board said he had the right to do.
_ 2
Carrier Members' Answer to
Labor Members' Dissent to
Award 21472
There is no similarity between the facts and circumstances in the
two awards, and certainly the dissenter must have known that before
he wrote the dissent. Award 21472 is correct in every respect.
Jv~C,
G. M. YOUHid
~ J
.K F. LUx m
P. C. CARTER
G. L. NA R
. MASON