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 employe 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.
A claim was filed on October 9, 1989 on grounds that there had been a violation of Rules 15 and 16 of the Signalmen's agreement on September 26, 1989. According to the claim signal crews were advised by the Crystal Lake Roadmaster at 2:45 PM on September 25, 1989 to "...tie up and be fully rested as per hours of service" and be "...on stand-by and be prepared to report to work" at 12:00 AM on September 26, 1989. According to the claim no call was made to take any of the men off stand-by and one of the Signalmen, R. Lundquist, reported to the signal shop but his "overtime was denied."
In denying the claim the Division Manager states the following:
In response to this denial the Local Chairman denies that the men were notified at 5:00 PM by supervision: "no call was made to take above men off of stand-by." If they were notified, the Chairman asks: "How were these men notified? Who notified them? Where were they reached at?" The organization provides the company with statements by the Claimants to the effect that they had not been contacted. One of them, for example, who was crew foreman at Des Plaines, states that:
Another of the Claimants states that he was "...told to go home and be ready to perform work at 12:00 AM. I was never notified that I would not be neededel.
A review of the record shows that on April 12, 1990, the Signal Supervisor at Des Plaines wrote to the Director of Labor Relations in an attempt to clarify the facts on this case. In that letter the Signal Supervisor states that he was "...called by (his) manager... and told to send (his) crews home in case they were needed." He then states that he called his "...Des Plaines crew and told them to 'tie-up' and start their rest." He also told them of damage to the west line and that they "might be needed". He said that he heard the foremen on the phone state that they would tie up and come in when rested but was concerned about this miscommunication. But later he "...called the foreman and got him at his headquarters and asked him if he got the message right and if he was successful in telling the men not to report for work. He told me he had contacted everyone except Mr. Lundquist."
First of all, it is clear that the Claimants were told to tie up. early in case of emergency work and that they were paid for doing this. As the General Chairman advises the Carrier in his May 7,.1990 correspondence, the Carrier would not have sent men home early and paid them just so they could only have gotten their rest. They needed rest, and an early tie up, for something. Evidently, this meant to be on stand-by until needed. It simply could not have meant anything else. So the Claimants remained on stand-by. Form 1 Award No. 29820
Their point is that they were never told that they were taken off stand-by. According to the Signal Supervisor, the Claimants were told not to remain on stand-by a "foreman" who remains, however, unidentified. In view of the record as a whole, and the considerable corroborating evidence presented by the Claimants, their position on the matter of whether they had been contacted or not is more credible and the Board must rule accordingly. The organization, as moving party, has sufficiently met its burden of proof in this case (See Second Division 5526, 6054: Third Division 22180, 25575) and the Board is not warranted in dismissing the instant claims on basis of irreconcilable differences of fact (See Third Division 20053, 23834, 26679: Fourth Division 3201), The issue surrounding Claimant Lundquist remains an anomaly. However, since according to the Signal Supervisor, there was some confusion with respect to whether the men were told to, and not to, come in to work or just to "...tie up and start their rest", as he put it, apparently all had understood that they were to remain on stand-by until contacted except Lundquist. He must have understood that he was to report at mid-night unless contacted to the contrary otherwise, evidently, he would not have shown up for work at that time. Supervision stated that they tried to contact him without success. That may or may not be correct since evidence suggests that supervision had not contacted any of the other Claimants, whose correct telephone numbers were available. Clearly, the genesis of this case centers on communication problems which the Signal Supervisor had with those who were reporting to him.
In view of violation of the Rules at bar the Carrier is directed to pay the claims as requested.
CARRIER MEMBERS' DISSENT
TO
AWARD 29820, DOCKET SG-29626
(Referee Suntrup)
There are two facts which are undisputed in this record. First, that both the Des Plaines and the Crystal Lake crews were relieved from their regular assignments early on September 25, 1989. Second, that all of the Claimants, except one, Mr. Lundquist, who could not be subsequently contacted, DID NOT REPORT for any service at midnight on September 25, 1989.
Claimants were initially released early for rest required by the Hours of Service Act so that they could be available for use at a derailment after midnight. The possibility of being called for emergency work is recognized by Rule 16 and does not require any special notice. All that the Carrier did was to arrange its forces so that they, the crews, could be expediently employed if needed.
As is noted by the majority on page 5 of the Award, there was subsequent communication with these crews at approximately 5:00 PM. Despite the rhetorical questions quoted at page 3 of the Award, the signal supervisor contacted the Crystal Lake crew foreman at :,is headquarters at approximately 5:00 PM with instructions to notify the crew NOT to come in. Subsequently, the signal supervisor :as advised by the Crystal Lake foreman of his, the foreman's, inability to contact Mr. Lundquist. Statements were also submitted from members of the Des Plaines crew that initially they were to "be ready to perform work at 12:00 AM."
If the foregoing was the understanding of both crews when released at 2:45 PM, then why is it that only Mr. Lundquist, the
only individual not subsequently contacted, reported at midnight. Claimants collective failure to report at midnight substantiates that there was a change in their instructions. The Majority quotes at page 5 of the Award that the men were told "not to report to work." Such factual instructions should have resulted in the denial of this claim. That "supervision" did not call these "other Claimants" was because the communication was made through the crew foremen who are not considered as supervisors, i.e., management.
The handling of Claimant Lundquist is no "anomaly." Foreman Pantaleo was instructed to leave a note for Mr. Lundquist to stay at the shop and to make a work report to pay Mr. Lundquist for his time on the property. Claimant Lundquist failed to comply with the instructions.
Finally, Rule 15(b) provides a "minimum allowance" anc. compensation on the actual minute basis, "if held longer than two hours." (Emphasis added) None of the Claimants met the requirement of the rules. Claimants, between midnight and 7:00 AM, performed no compensable service and are being enriched by this Award. Award 29820 does'not rest on the facts but on the Majority's assumption. i·-We i se t.