NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-21424
Nicholas H. Zumas, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Texas City Terminal Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
that:
(1) The Agreement was violated when the Carrier failed
and refused to compensate Trackmen Ciriaco G. Nieto, Epifanio Guardiola,
Florencio F. Vasquez and Javier I. Longoria for standby service rendered
by each from 1:00 PM to 3:20 PM on November 17,
1974.
(File TOT-2)
(2) Each of the above-named employes now be allowed 2 hours
and 20 minutes'pay at their time and one-half rate.
OPINION OF BOARD: On the claim date, a rest day, each of the
Claimants was called at 7:00 a.m. to work a
derailment. They worked continuously until 1:00 p.m. (except for lunch
break).
According to the time claim filed by one of the Claimants:
"Track Foreman told these men to go home and
wait for him to call them back to work as they
were expecting to get the Hook Truck to rerail
some cars which were on
fsi)
ground. Track
Foreman told his men not to leave their hones
and wait for his call..."
Claimants were called and reported at 3:20 p.m. They worked
until 6:00 p.m. and were released. They received
8
hours 40 minutes
pay. This is a claim for pay from 1:00 p.m. to 3:20 p.m.
Carrier asserts that the Claimants were released from work
at 1:00 p.m. and told that if a rented wrecker truck was available and
used they would be called again. There is no statement in the record,
however, by the Track Foreman himself as to what he told the Claimants.
Under the circumstances, we hold the Claimant's statement to be
unrefuted.
Award Number 21885 page 2
Docket Number
MW-21424
Rule 1 of Article XVII of the agreement provides in pertinent
part:
"Time worked or held on duty on rest days,. and
the following holidays ...shall be paid for at the
rate of time and one-half, with a minimum of two
(2)
hours and forty
(4o)
minutes for two
(2)
hours work or less at time and one-half rate as
provided for in Rule 7 of Article XIX."
In Second Division Award No.
3955
the Board had occasion to
consider the meaning of the term "time held on duty." The Board said:
"on
the otherhand, the term 'time held on duty'
ordinarily refers to time spent by an employe in
the interest of the employer and his business,
even though part of the time may be spent in
idleness, provided the employe is appreciably
restricted in his movements or otherwise subject
to the employer's control during such time. See:
Missouri, Kansas & Texas Railway Company of Texas
v. United States,
231
U.S. 112,1195
34
S. Ct. 26,
27 (1913).
However, if an employe who is on call
or standby is not confined to his home or to any
particular place but may come and go as he pleases,
provided he leaves a message or telephone number
where he can be reached, the time so spent is not
usually regarded as 'time held on duty'."
(Emphasis added).
Applying the principle enunciated in Award No.
3955
to the
unrefuted statement in this record that Claimants were sent home and
instructed to stay there until called, the Board shall 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 E.mployes involved in this dispute
are respectively Carrier and Employes within the meaning of the Railway
Labor Act, as approved June
21, 1934;
Award Number
21885
Page
3
Docket Number W-21424
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
ATTFST:~
ec~utive Secretary
Dated at Chicago, Illinois, this 31st day of January
1978.