NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-21312
Nicholas H. Zumas, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Texas and Pacific Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
that:
(1) The Agreement and practice thereunder were violated when
the Carrier failed and refused to compensate Roadway Machine Operators
D. M. Turner and 0. J. Watson at the rate of $5.1260 per hour for services
performed in the operation of Burro Cranes on seniority districts where
such rate is applicable to such service (System File K-310-115).
(2) A differential of $.3565 per hour shall now be paid to
(a) Claimant Turner for 648 hours for service performed
on Gulf District at Valley Junction from April 2,
1973 through July 27, 1973
and to
(b) Claimant Watson for 176 hours for service performed
on the Missouri Pacific Lines in October and
November, 1973.
OPINION OF BOARD: Claimants herein were Roadway Machine Operators
employed by Carrier. On the claim dates in question
they were assigned to perform burro crane work in the Gulf District of the
Missouri Pacific Railroad. The rate of pay allowed for burro crane
operation is approximately 35 cents an hour more on the Missouri Pacific,
and Claimants herein seek the differential. The Organization contends
that Claimants are entitled to the higher rate under Rule 28 when they
were assigned to perform work where the higher rate is applicable.
The Organization also asserts that prior settlements on this property
under identical circumstances interpret Rule 28 in favor of the Organization.
Carrier contends that Claimants were not performing work of a
higher rated positicn and are therefore not entitled to the higher pay.
With respect to prior settlements, Carrier takes the position that they
were made by a Superintendent in the Operating Department and cannot be
binding on Carrier.
Award Number 21877 Page 2
Docket Number MW-21312
Rule 28 provides:
"An employe assigned to work on a higher rated
position thirty (30) minutes or more, but less
than one (1) hour, will be allowed the higher
rate for the full hour, and thereafter will be
paid the higher rate on the minute basis for the
full time worked on the higher rated position."
There is nothing in this record to indicate that Carrier, at
any time during the handling on the property, rejected the Organization's
assertions that the prior settlements were binding, nor did it take the
position that the settlements were made by Carrier officials who had no
authority. These contentions are advanced for the first time before
this Board.
On the basis of the record before it, the Board must sustain
the claim.
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
The Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 31st day of January 1978.