NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number TD-25207
Marty E. Zusman, Referee
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association:
Claim #1 - R. J. Alexander, Ft. Madison, IA for 10/14/81
"...payment of 13 hours 30 minutes pay at time and 1/2 rate
favor of Dispr. R. J. Alexander for attending formal investigation as a Company witness at Moberly, Mo. at the request
of the N&W Railroad, on October 14, 1981."
Claim #2 - J. T. Sevier, Ft. Madison, IA for 11/17181
"...payment of 12 hours and 27 minutes at time and one.half,
favor Dispr. J. T. Sevier for attending formal investigation
as a company witness at Jefferson City, Mo. at the request,
of the MOP Railroad on Nov. 17,'1981."
OPINION OF BOARD: This dispute involves two similar claims in which Claimants
were requested by the Carrier to attend formal investigations
as Carrier witnesses. Two preliminary points need to be addressed. First, the
Carrier argues that these claims must be viewed as separate and distinct inasmuch
as the petition of Claimant Alexander was denied by letter of October 20, 1981,
by Mr. Smelser and followed thereafter by a late appeal. Finding no supporting
evidence to substantiate this line of reasoning, this Board rejects that argument.
Secondly, a review of the record as handled on property not only fails to substantiate
a letter of October 20, 1981, but similarly finds that ex parte arguments presented
to this Board were not discussed on property and as such, this Board will not
consider them now. A11 such arguments, lines of reasoning and supporting documentation
not discussed on property are inadmissible. This position is a firmly established
position of the National Railroad Adjustment Board, codified by Circular No. 1
and consistent with numerous Awards in this Division (Third Division Awards 20841,
21463, 22054). Carrier discussions of Section 6 Notices as well as Exhibits
pertaining thereto are inadmissible.
The case at bar reflects two similar circumstances, wherein in instant
Claim one, Claimant R. J. Alexander after completing eight consecutive hours of
work was required by Carrier to attend a disciplinary investigation as a Carrier
witness. On October 13, 1981, immediately after completion of his regular
assignment, he drove to the locality and stayed overnight so as to attend the
investigation of October 14th. After being dismissed he returned to his origination.
Instant Claim two occurred on November 16th and 17th, 1981. After completing
eight consecutive hours of work on November 16th, Claimant J. T. Sevier traveled
to Jefferson City, MO for the purpose of being available at 9:00 A.M. as a Carrier
Award Number 25306 Page 2
Locket Number TD-25207
witness at a disciplinary investigation. Transportation was provided. Upon
arrival, Claimant stayed overnight, attended the investigation and then returned
the approximately 470 miles to his origination. It is the position of the
Organization that payment in both cases should have commenced from the end of the
eight (8) hour consecutive work day until return to origination following the
investigation on the next day.
The Organization bases its claim far payment to be addressed by Article
III, Sections 1 and 2 upon past decisions of the Third Division of the National
Railroad Adjustment Board, Awards 6679 and 6695, as well as Ruling No. D-3 and a
Carrier letter of December 17, 1973, allowing a claim and reiterating the applicability
of Ruling No. D-3. In Award 6679 between these same parties the issue was joined
as to payment for travel time and for waiting time and the decision was reached.
that sustained the Organization's position that such time was work time. A strong
Dissent was issued and the Carrier brought the issue back to the Board, even
involving the same Claimant to the earlier June, 1952, case. In this very similar
case the Board in Award 6695 sustained the Organization. Shortly thereafter
Carrier issued letters of June 28, 1955, and July 1, 1955, of a Ruling No. D-3
which read in pertinent part:
"Effective June 1, 1955, train dispatchers should be paid
in accordance with Article III, Sections 1 and 2 of the Train
Dispatchers' Agreement, effective September 1, 1949, for
time spent in waiting and traveling outside regularly assigned
hours in attending investigations as a witness for the
Company."
By letter of December 17, 1973, a claim was allowed by the Carrier and
in correspondence stated in part "your attention is directed to Ruling D-3, dated
June 28, 1955, issued from this office, which ruling is still applicable and indicates
that for time spent in waiting and traveling... should be paid in accordance with
Article III, Sections 1 and 2...". As such, the Organization now pursues these
two instant claims for compensation following Article III, Sections 1 and 2 which
read in pertinent part:
"Section 1. Eight (8) consecutive hours shall constitute
a day's work.
Section 2. Time worked under this Agreement in excess of
eight (8) hours, continuous with, before and after, regular
assigned hours will be considered overtime and paid for
on the actual minute basis at the rate of time and one-half."
The Organization maintains the issue to have been previously decided
and that the instant claim should be sustained on the basis of "stare decisis".
That in addition, the Carrier's payment was based on a Rule that is not applicable.
Award Number 25306 Page 3
Locket Number TD-25207
The Carrier based compensation as indicated in the letter of January
18, 1982, from Superintendent Gill upon Article VII, Section 10 which reads in part:
"...Train dispatchers acting as witnesses in investigations
for and at the request of the Company will suffer no deduction in pay for actual time lost from regular assignments
by reason thereof. If so used outside their assigned hours,
they shall be paid at the pro rata rate for actual time
required to be in attendance; if on their rest days,
payment for actual time shall be at a rate of time and
one-half."
It is the Carrier's position that this is a specific rule that takes precedence
over a general rule. The Carrier further argues that Awards 6679 and 6995 are
"erroneous and improper Awards for the reason that they exceeded the statutory
authority of the Board". It further asserts that these claims are based on
"travel time" and/or "rest time" for which there are no rules in the Dispatcher's
Agreement. Carrier also asserts that such time has not been maintained by this
Board as "work time" and cites support (Third Division Award 18377).
The weight of the evidence for any claim is the responsibility of the
moving party. This Board has carefully reviewed the one paragraph opinion of
Award 6679, the Dissent and the Award 6995 which states little more than "it is
clearly evident the Carrier is attempting to secure a rehearing of Awards 6679
...."
A careful review of Award 6679 indicates that the circumstances in the instant
case differ substantially in that the case at bar involves "rest", "sleeping" and
"eating" time wherein Award 6679 only involved "travel" and "waiting" time. As
such, this Board sees no established precedent for the case at bar.
The strongest support for the Organizations case is the presentation
of Ruling No. D-3 and its subsequent use on December 17, 1973. This Board notes
that such evidence does lay weight to the claim. However, in the mind of this
Board there has been entirely too much time elapsed with no evidence of record of
the same situation having arisen since 1954 or after 1973 to provide substantiation
that, barring Agreement support the employes had come to count on this action
being other than gratuitous. While it had some stature, being reduced to written
Rule, it lacked support, in that there is insufficient evidence of record to
substantiate that it was other than a unilateral position or to document that the
application of Ruling No. D-3 had become an established practice of a constant
response to a recurring set of circumstances.
It is the determination of this Board that Article VII, Section 10 is
the Rule germane to attendance at investigations. That Rule is silent on the
issue at bar. Neither past Awards nor Ruling No. D-3 have strong enough support
in the record to establish a firm practice to which Carrier would be restrained
from abandoning. As such, this Board finds that the Carrier did not violate the
Agreement and as we are not permitted to expand upon the Agreement negotiated by
the parties, we must assume that the absence of language covering this issue is
intended.
Award Number 25,306 Page 4
Docket Number TD-25207
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 not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: _ _
Nancy er - Executive Secretary
Dated at Chicago, Illinois, this 28th day of February 1985.
Labor Member's Dissent
to
Third Division Award 25306 - Docket TD-.2520?
Referee Zusma,n
In Third Division Award 22206, the majority wrote: "It must be
disquieting, both to labor and management, when neutrals vascillate on
basic issues."
In Third Division Award 24547:
"'.
. . we do not think it proper
for the Hoard to issue conflicting awards involving the same provisions
of the same agreement between the same parties."
In Second Division Award 9234: "It would be illogical and inconsistent with the time honored doctrine of stare deeisis for us to relitigate that issue here. Predictability and consistency, which are of
value to all concerned,, would be destroyed."
In Fourth Division Award 3443: "Whether phrased in terms of 'res
judicata', 'stare deeisis' or any other legal terminology, the fact remains that the best ends of labor-management relations are served by a
basic predictability of Awards, especially when a dispute involves the
same parties, same rules and same basic evidence."
In light of these thoughts on the subject of precedent, let us
consider Award 25306.
Third Division Award
6679,
which considered the same dispute on
the same carrier, same agreement and rules, cited Award 2223: "Tde think
the time has came when we should say that where the employe is not himself involved in a matter being investigated, and he is called by the
Carrier, in its own interest, to attend an investigation, he should be
paid, whether we call what he does 'work' or 'services,' and whether
he is called on his rest day
or
otherwise is not controlling . . . ."
(Emphasis supplied in Award
6679).
Since the instant case involves appropriation of the employee's
own, off duty time, for the Carrier's benefit, even as did the same Carrier in Award
6679,
(there was no mutuality of interest), it is difficult to comprehend just why a distinction was drawn between rest, sleeping, and eating time, as opposed to travel and waiting time. Surely,
Labor Member's Dissent to
Award, 25306
it is illogical to conclude that time spent in travel and waiting
may not be employed as time is rest, eat, or sleep.
Third Division Award
6995
reinforced the decision of Award
6679.
More perplexing is the majority's rejection of Ruling No. D-3.
Third Division Award 14229 statesa
w.
. . once a practice is established and adopted by both
parties as the proper interpretation of a Rule neither party unilaterally should be allowed to abandon that practice
atqore than he should be allowed to abandon a written rule.'
Ruling No. D-3 had more stature than an unwritten practice, being reduced
to writing and expressing specific intent. As recently as December 17,
1973,
Ruling No. D-3 was cited by the Carrier itself as support for sustaining a similar claim.
What would have convinced the majority? Would it have been necessary to show reliance on Ruling No. D-3 on a da basis since
1954?
The record does not indicate that the Carrier repudiated Ruling No. D-3
until these disputes arose. There is no evidence of any change in agreement or interpretation between December 17,
1973
and October 14,
19$1,
when the first of these two claims came into being. Yet, for some undisclosed reason, the majority finds that the absence of a dispute in
that eight year period somehow fails to substantiate the Carrier's own
understanding of the Agreement's application as being other than gratuitous.
In short, there is no rationale for abandonment of the application
of Article III, Sections 1 and 2, to these circumstances, as determined
by Award 6679,
reaffirmed in Award
6995,
applied by the Carrier itself
for future guidance in Ruling No. D-3, and demonstrated in settlement
of a claim in
1973.
To say, ". . . we must assume that the absence of
language covering this issue is intended, is to ignore Article III,
Sections 1 and 2, and all the evidence entered in support of the claims.
This Award errs in overturning the application of agreement provisions already determined by prior Awards and the accepted practice
Labor Member's Dissent to Award 253Q~
on-property
derived from these Awards. We
must, therefore, register
dissent to Award 25306.
R. J. Irvin
Labor Member
-3-