Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29359
THIRD DIVISION Docket No. CL-28787
92-3-89-3-197
The Third Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10356) that:
(a) Carrier violated the intent and provisions of the current Clerks'
Agreement at San Diego, California, on February 8, 9, 11, 18, 23 and 26, 1989,
when it diverted Claimant from his regular assignment of Head Claim Clerk
positon No. 6214, then failed and/or refused to properly compensate Claimant
at the rate of his regular assignment; and
(b) Claimant Dolan shall now be compensated at the rate of his
regularly assigned Head Claim Clerk Position No. 6214, which is $108.10 per
day for February 8, 9, 11, 18, 23, and 26, 1988, and as a result of such
violation of Agreement rules, in addition to any other compensation he may
have received for these dates, including interest payable at the prevailing
prime rate covering such loss and continuing as long as Claimant is deprived
of this compensation, which amounts to $40.02, deducted from Claimant's last
half March, 1988 pa,! period."
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.
On February 8, 9, 11, 18, 23, and 26, 1988, Claimant was scheduled to
work his regular assignment, Head Claim Clerk Position No. 6214, which has a
daily pay rate of $108.10. On these dates, however, Carrier instructed Claimant to work in the Chief
of $114.94. Claimant was paid for this work in a paycheck issued in the first
half of March 1988. Contending that the Claimant had been overpaid because
Form 1 Award No. 29359
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the wrong pay code had been used, the Carrier deducted $40.02 from Claimant's
pay in the paycheck issued in the last half of March 1988.
The Organization then filed a Claim on the Claimant's behalf, contending that the Carrier violat
compensate the Claimant. The Carrier denied the Claim.
This Board has reviewed the evidence and testimony in this case, and
we find that the language of the Agreement requires that the Claim be sustained.
The Carrier basis its denial on its interpretation that the extra
payment received by the Claimant for working the Chief Clerk position on the
dates in question was an "arbitrary" representing duplicate time payments and,
therefore, not subject to the increases contained in the National Agreement.
However, that is simply an improper interpretation.
The amount in dispute represents a portion of the Claimant's regular
rate of pay for his regular position which he received pursuant to Rules 31(a)
and 32(n) as a result of the Carrier's assigning him to the Chief Clerk
position. The amount in dispute is not a special allowance or payment to the
employee for inconvenience, delay, attending court, deadheading, travel time,
etc. Hence, pursuant to Rules 31(a) and 32(n), the Claimant was entitled to a
full day's pay for the job he actually worked. The Carrier had no right.to
classify his rate of pay as an "arbitrary" and thereby subtract the recent pay
increase from his regular pro rata pay.
This issue was discussed in another Award by Special Board of
Adjustment No. 1011. In Award 5, that Board held that the type of payment is
not an arbitrary.
We also want to distinguish this case from Case 1 of Public Law Board
No. 2093, cited by the Carrier. That case involved a meal allowance which is
more of an "arbitrary" or a "special allowance not included on fixed . . .
rates of pay . . . .
Since we find that the amount at issue is not an arbitrary, but is
based on Claimant's regular rate of pay, we find that the Claim must be sustained. The eight pro rat
rate of the regular assignment as if the Claimant had worked it. The request
for interest is denied.
A W A R D
Claim sustained in accordance with the Findings.
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92-3-89-3-197
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: ,
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 25th day of August 1992.