The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
In this claim, the Organization asserts that Carrier violated Rule 63(c) when it failed to treat as time worked time the Claimants spent riding between their headquarters and their work site. The Organization insists that Rule 63(c) considers this time as time worked because Claimants were required to handle tools to and from highway vehicles each time they were transported between their headquarters and their work sites.
The Organization maintains that the Work Site Reporting Rule, Article VI of the June 27, 1992 Agreement, does not modify this result. In the Organization's view, all Article VI did was exclude certain specified travel time between the time the employees reported at their headquarters and the time they arrived at their work site. however, according to the Organization, Rule 63(c) deals with time worked and not travel time and, therefore, provides no basis for the Carrier to decline the payment the Organization claims has always been provided pursuant to Rule 63(c). Thus, the Form 1 Award No. 32518
Organization insists that Article VI did not change the historic practice of paying employees, pursuant to Rule 63(c), for time worked in handling tools to and from highway vehicles each time employees were transported between their headquarters and their work site.
Carrier, on the other hand, disputes the Organization's claim that M/W Equipment Operators (EWES) have traditionally been paid for time traveling as time worked. Carrier insists that these individuals have never been so paid under Rule 63(c) of the Agreement. Carrier maintains that it has consistently applied Rule 63(c) as not addressing payment for an employee carrying personally owned tools. Instead, Carrier insists that the tools referred to in Rule 63(c) are company owned tools used by the work unit in general. In Carrier's view, Claimants' election to remove their personal property at the end of each day does not warrant the payment specified in Rule 63(c). Carrier insists that the Organization has been unable to demonstrate that this payment was paid under Rule 63(c) in the past. Without such evidence, argues Carrier, it is unnecessary to reconcile the relationship between Rule 63(c) and Article VI of the June 27, 1992 Agreement.
Moreover, Carrier insists that the new Work Site Reporting Rule takes precedence over the general travel time provisions set forth in Rule 63(c). It cites a series of Awards in support of this proposition. For all of the foregoing reasons, Carrier insists that the Organization's claim is without merit.
Work Site Reporting Rule (Article VI) and the old Waiting and Traveling Rule (Rule 63). The parties legitimately differ as to their view of the relationship or lack of the relationship regarding these two Rules.
However, we are unable to resolve this underlying issue. This is so because there is an irreconcilable dispute of fact in the record. The parties have steadfastly insisted upon different interpretations and applications of Rule 63(c) in the past. According to the Carrier. travel time with personal tools has never been treated as working time on the property. In contrast, the Organization insists that such travel has always been treated as working time by the Carrier. Form 1 Award No. 32518
Because the cornerstone for determining the relationship between Article VI and Rule 63(c) is an agreed upon understanding and interpretation of how Rule 63(c) has been applied from 1945 to 1992, this irreconcilable dispute in fact makes it impossible for the Board to address the fundamental question presented by the claim.
Stated otherwise, without being able to reconcile this factual dispute, we are required to dismiss the claim without resort to the underlying dispute of the relationship between Rule 63(c) and Article VI. That is, we are dismissing the claim due to an irreconcilable factual dispute without determining the meaning of Rule 63(c) nor of its relationship, if any, to Article VI.
The Board regrets that no other conclusion is possible regarding this important and interesting question.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.
LABOR MEMBER'S DISSENT
TO
AWARDS 32518, 32519, 32520 AND 32521
DOCKETS MW-31603, MW-31604, MW-31605 AND MW-31606
(Referee Scheinman)
In these awards, the Majority failed to reach a decision concerning the merits of the cases beca facts. These cases were the subject of an intense referee hearing wherein the Carrier brought in its own representative to argue its position. Early on during the referee hearing, the Carrier's representative admitted that up until J Article VI went into effect, the employes who were required to carry tools were paid as time worked for the time spent traveling from the headquarters point to the work site. Hence, any question as to the application of Rule 63 (c) prior to the effective date of Article VI was clearly defined by the Carrier. The thrust of the Carrier's argument was that Article VI was meant to negate Rule 63(c); however, this view was in the Carrier's eyes only. The Organization pointed out that if it wa have Article VI negate or amend Rule 63(c), which the Organization vehemently argued that it did not, it would have been a simple matter for the parties to make such an adjustment in Rule 63(c). Because it is crystal clear that the parties did not make any such adjustment to Rule 63 (c) in relation to Article VI speaks for itself.
As was argued by the Organization, Rule 63 (c) is crystal clear and the Board should not have hesitated to sustain the claims. But as fate would have it, the Majority searched for a reason to dismiss the claims and latched on an ob the Carrier's final denial of the cases on the property to justify its actions. The problem with the Majority's search for a reason to dismiss the cases was the Carrier representative's earlier admission that the employes who were r always been compensated therefor as time worked and its allegation that Article VI amended Rule 63(c). Hence, the Majority's opinion that: