Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29057
THIRD DIVISION Docket No. MW-28484
91-3-88-3-295
The Third Division consisted of the regular members and in
addition Referee Gil Vernon when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Kansas City Southern Railway Company
(Former Louisiana 6 Arkansas Railuay Cominny)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and refused
to allow Foreman R. A. Norwood pay for the overtime work he performed on
Friday, September 19, 1986 (Carrier's File 013.31-364).
(2) As a consequence of the aforesaid violation, Mr. R. A. Norwood
shall be allowed 2.7 hours of pay at his time and one-half overtime rate."
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.
Parties to said dispute waived right of appearance at hearing thereon.
The basic facts are not disputed. Following his regularly assigned
tour of duty and after he and his gang members had been released from service
for the weekend on Friday, September 19, 1986, the Claimant was contacted by
the Roadmaster. The Claimant was instructed by the Roadmaster to instruct two
members of his crew to be available for work the next day (their rest day) at
7:00 A.M. The Claimant asserts that he made numerous attempts to contact
these two employees by telephone for forty-five minutes, but neither employee
could be located. He then, using his personal pickup truck, patrolled the
streets of the town for approximately thirty minutes prior to his finding the
employees at a "cafe." The claim requests compensation for the time expended
in these efforts.
Form 1 Award No. 29057
Page 2 Docket No. MW-28484
91-3-88-3-295
The Organization relies primarily on Rule 25 - Calls, which states:
"Except as otherwise provided in these rules,
employees notified or called to perform work not
continuous with, before or after, the regular work
period, will be allowed a minimum of two (2) hours
and forty (40) minutes at time and one-half rate for
two (2) hours and forty (40) minutes' work or less,
and if held on duty in excess of two (2) hours and
forty (40) minutes, time and one-half will be allowed
for actual time worked or held on duty."
It is the Organization's position that the Claimant performed duties
associated with and following his regular assignment. Moreover, it contends
that no past practice existed on this Carrier's property which prevents payment to the Claimant for
The Carrier takes the position that contacting the employees in
question is part of the Claimant's duties and does not qualify for extra pay
under Rule 25. It relies on Rule 27-2 which states:
"Employees whose responsibilities or supervisory
duties require service in excess of the working hours
of the general forces, such as keeping time, making
reports, answering correspondence, conferring with
superiors, obtaining lineups, etc. will be com
pensated on a monthly rate. The monthly rates paid
these employees are based upon one hundred seventy
six (176) hours per month." (Emphasis added)
It is readily apparent to the Board from a reading of Rule 27-2 that
not all duties a Foreman engages in outside his regular hours are compensable
above and beyond his monthly rate. Clearly the monthly rate contemplates to
some degree that the Foreman will be engaged in certain supervisory activities. The question present
Rule 27-2 as being contemplated by the monthly rate. However, the Rule does
not limit its coverage only to those duties specifically mentioned. They are
listed as examples of general class duties which are contemplated. Thus, the
Board views the language of the Rule ambiguous as related to the duties in
question here. If the Rule can be said to contemplate these activities, then
it is part of the monthly rate, and Rule 25 does not apply. If the opposite
is true, it can be said Rule 25 does apply.
Form 1 Award
No.
29057
Page 3 Docket
No.
MW-28484
91-3-88-3-295
One of the tools of interpreting ambiguous language is past practice.
It is indicative of what the parties intended the language to mean and how it
should apply. In this case the Organization presented no evidence of past
practice which supports the idea that calling employees is not part of a supervisor's monthly rated
claims under even remotely similar circumstances suggests a practice to the
opposite effect.
In view of the foregoing, the claim must be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
gi
opff -Executive Secretary
Dated at Chicago, Illinois, this 22nd day of November 1991.