Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28240
 THIRD DIVISION Docket No. CL-27128
 90-3-86-3-307
 The Third Division consisted of the regular members and in
 addition Referee Edward L. Suntrup when award was rendered.
 (Transportation Communications International Union
 PARTIES TO DISPUTE:
 (Elgin, Joliet and Eastern Railway Company

 STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood

1. Carrier violated the effective Telegraphers' Agreement when it called Extra Operators R. Blunt and C. Voss from the extra list on May 4 and 12, 1985, respectively, and then unilaterally and without notice, deducted five hours from the amount of time claimed, thereby paying them improperly.

 2. Carrier shall now compensate claimant Blunt an additional five hours' pay at the straight time rate of Operator-Barrington for June 10, 1985, and shall further compensate Extra Operator C. Voss an additional five hours' pay at the straight time rate of Operator-Barrington for,June 10, 1985."

 FINDINGS:
The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The Organization filed separate, but similar Claims on behalf of the Claimants for the dates of May 4 and 12, 1985. These Claims are presented to the Board for adjudication under the same docket.

 Both Claimants were Extra Board Employees called to work at Barrington, Illinois. Both put in fo deducted five (5) hours' pay for the crates in question, "from subsequent earnings." The Claims filed state that "there is no provision in our agreement for a three-hour day. provision allowing for three hours' pay is Article 41 which applies to overtime calls for employees Form 1
 Page 2

 Award No. 28240
 Docket No. CL-27128
 90-3-86-3-307

 When the Claims were denied by the Chief Train Dispatcher he alleged, first of all, procedural defect on grounds that the "claims were not presented within the time limits provided for in Article 44." The Rule states that
 ...claims or grievances must be presented in writing by or on behalf of the employee involved ....within 60 days from the date of the occurrence ...." The Claims state that payment for the relief requested was withheld "on or about June 10, 1985." The Claims were filed on July 19, 1985. There was no violation of Article 44 by the
On merits the Claims were denied because the "Claimants were called to perform work not continuous with the regular work period ....(and)...there was no regular position assigned to work at Harrington on claim dates." According to the Carrier, both employees were advised beforehand that they would be allowed three (3) hours "pay for this unassigned work and were ...working on a 'call' basis."

 The resolution of the instant dispute centers on whether the call of the Extra Board Employees was covered by Article 41 as the Carrier argues, or whether it was covered by some other provisions of the Agreement.

 These pertinent sections of the contract state the following:

 "ARTICLE 25 - WORK FIRST-IN, FIRST-OUT
Ability and qualification being sufficient, extra employes will, so far as practicable, work first-in, first-out, but cannot claim extra work in excess of forty hours in their workweek, if a following or junior extra employe who has had less than forty hours work in his workweek is available. Extra employes must accept the work to which they are entitled under this article."

 "ARTICLE 31 - BASIC DAY
Eight (8) consecutive hours, exclusive of meal period shall constitute a day's work, except that where two (2) or more shifts are worked eight (8) consecutive hours shall constitute a day's work."

 "ARTICLE 32 - THE 40-HOUR WORKWEEK
(H) Rest Days of Extra Employes
To the extent extra or furloughed men may be utilized under this agreement, their days off need not be consecutive; however, if they take the assignment of a regular employe they will have as their days off the regular days off of that assignment.
 Form 1 Award No. 28240
 Page 3 Docket No. CL-27128
 90-3-86-3-307
















Form 1 Award No. 28240
 Page 4 Docket No. CL-27128
 90-3-86-3-307

As a preliminary point the Carrier argues that it made clear to all employees called to work at Barrington that they must fill out forms which clearly showed that they were working on a "call basis." These forms which were filled out on the days in question by the Claimants are found in Carrier's Exhibit F attached t forms, and what they imply, to Extra Board Employees which is precisely the nature of the dispute before the Board in this case the forms themselves must be viewed as conjecture on the part of the Carrier rather than evidence. The Carrier cannot resort to its own interpretation of its actions as justification for those same actio
The Organization argues that the Agreement contains no provisions permitting part-time work and that when Extra Board Employees are assigned to work, they are assigned to work a basic day as outlined in Article 31. The Organization states that this interpretation of Article 31 is supported by Article 36 which holds that if Extra Employees are called and "not used" they still shall be allowed "eight (8) hours' pay." Further, according to the Organization, Article 32 (j) covers the type of situations both of the Claimants found themselves in calls "unassigned days." This Article states that such work "may be performed by an available extra ...employee who will otherwise not have 40 hours of work that week." This was exactly the condition of the Claimants, according to the Organization.

 The Carrier, on the other hand, argues that since there was no regular position "assigned to wor it wished under the Call Rule and pay the minimum of three (3) hours at overtime. According to the C work force or work on a regular workday and no definite assigned starting times were involved."

 The Board observes that the conditions the Carrier describes are those covered by Article 32(j) and the Carrier exercised its rights under this Article by calling the Claimants as Extra Board Employees. Even if the Carrier had not worked the Cl been obligated to pay them eight (8) hours' pay under Article 36. The Carrier, however, argues that part of any assignment" as overtime work under Rule 41. The Carrier argues, further, that if the Agreement really means what the Organization is arguing it means then they would never have put on the bargaining table, in 1977 after filing a Section 6, the following language to be added to Article 36:
 Form 1 Award No. 28240
 Page 5 Docket No. CL-27128
 90-3-86-3-307

The Carrier is correct when it argues that the introduction of such language would have eliminated the dilemma created by the instant Claims by explicitly requiring the Carrier to pay Extra Employees a full eight (8) hours' pay irrespective of how many ho would have clearly and unambiguously eliminated a potential situation where an Extra Employee would be paid a full eight (8) hours for not working at all but only the actual hours at straight time rate for what time is worked. If the Carrier is right in this case then the Organization is now trying to get from this Board what it was not able to get at the bargaining table since the Carrier did not agree to pu as the instant ones since the 1977 language in question, but explicitly states rights and privileges already inherent in the Agreement anyway.

 After studying the pertinent language of the Agreement the Board cannot find where it provides f Employees called for work, whether it be to fill regular assignments, or work which is not part of any assignment as was the case here. On the other hand, the Agreement clearly gives the Carrier the right to call Extra Board Employees to cover either type interpret its compensation obligations to Extra Board Employees under Article 41 and thus pay them the overtime minimum, rather than eight hours pro rata? While the Agreement is not as clear on this point as might be wished, which is why the Organization ostensively introduced the language it did during the 1977 negotiations, a combination of the provisions found in Articles 31, 32 and 36 spell out privileges of Extra Board Employees which, in the view of the Board, are consistent with the instant Claims. Absent provisions dealing with part-time days, and since Extra Board Employees can be called to do work which is not part of any assignment, and since they are to receive full day's wages even if they do not work at all, the logic of the language of the Agreement suggests that as a corollary it follows that Extra Board Employees should also be paid a full day's wages even if they work less than a full day.

 Since the Carrier originally interpreted its actions as protected under Article 41 it is unclear why it then decided to pay the Claimants at straight time rate. When it attempted to correct this at the highest level of handling by then offering to pay the Claimants at overtime rate, the Organization refused such settl settlement would have been to admit that the original Claims were in error. However, for the Carrier to have been consistent in its position, it should
 Form 1 Award No. 28240
 Page 6 Docket No. CL-27128
 90-3-86-3-307

 have simply corrected its error and have paid the Claimants at overtime rate for the minimum three hours. It never did this. Since it did not do this the Carrier leaves this Board with the factual conclusion that it was not really Article 41 which was the basis for its actions in the first place, since that is an overtime provision, but rather that it somehow had the right to pay Extra Board Employees only for the hours they were called to actually work under the conditions at bar. The Agreement supports no such arrangement. The Agreement was violated and the Claims are sustained in full. Each Claimant shall be paid five (5) hours' pay at straight time rate.

 The Board has restudied various arbitral precedent in this industry dealing with application of basic day rules comparable to Article 31 here at bar. Those Awards generally deal with employees on unassigned, furloughed or extra status who are called to work regular positions and/or to work positions which supplement the workforce and can be distinguished from the facts of the instant case (See Third Division Awards 1803, 13155, 15504 inter alia).




                          By Order of Third Division


Attest:
        Nancy J. -Executive Secretary


Dated at Chicago, Illinois, this 11th day of January 1990.

CARRIER MEMBERS' DISSENT

TO

AWARD 28240, DOCKET CL-27128

(Referee Suntrup)


The rationale for the Majority's sustaining Award is set forth as follows:

 "Absent provisions dealing with part-time days, and since extra board employees can be called to do work which is not part of any assignment, and since they are to receive full day's wages even if they do not work at all, the logic of the language of the Agreement suggests that as a corollary it follows that extra board employees should also be paid a full day's wages even if they work less than a full day." The difficulty with the Majority's syllogism is that the major premise is erroneous. The Majority posits its conclusion on its belief that employees "receive full wages even if they do not work at all." Such position is based upon Article 36 of the Agreement which the Majority recites as follows: "Article 36 - Reporting and Not Used
 An extra employe called and not used shall be allowed eight (8) hours' pay at the rate of the position called for." The fact of the matter, however, is that Article 36 of the parties' Agreement does not read the same as quoted above. Instead, it provides: "Article 36 - Reporting And Not Used
An extra employe who reports for work and is not used shall be allowed four (4) hours' pay at the rate of the position called for and stand first out." In this case, the Claimant was paid three hours at the time and one-half rate. He thus was paid more than the amount called for under Article 36.
 CM's Dissent
 Award 28240
 Page 2

 To state that the Majority Award has no precedential value, however, may be going too far. We believe that the reasoning of the Majority clearly demonstrates that if it had gotten the facts correct, its analytical approach would have resulted in a denial Award. To that extent, the Award may prove beneficial in future disputes involving this issue.

 M.
 7// //" J ~). ~/ Z-

    W. Fingerhut


R. L. Hicks

 M. C. Lesnik

 P. V. Varga

              i