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.
At the time of the incidents in question, Claimant M. A. Lee had established seniority as an Assistant Foreman. He was assigned and working as such on Regional Gang TP-07 when the events of this dispute occurred. He was a monthly-rated employee with an assigned workweek that consisted of four ten hour workdays.
Claimants J. E. Thomas and R. W. Soggie had established seniority as Foremen; Claimants R. G. Richards and A. L. Green had established seniority as Assistant Foreman; Claimants J. L. Graybill and J. B. Wiebelhaus had established seniority as Group 2 Machine Operators; and Claimants L. J. Rasco and B. Coniston had established seniority as Group 3 Machine Operators. All were assigned and working their respective positions on Region Undercutting Crew UC-12 when the events involved in this dispute occurred. They were monthly-rated employees and had assigned workweeks of rive eight-hour days, Monday through Friday.
The facts in this matter appear to be uncontested. On November 2,1992, Claimant Lees reported for duty at his assigned starting time. However, the Carrier did not permit him to work his entire shift due to inclement weather (blizzard and ice storm) and only compensated him for three hours.
On May 1, 10 and 17,1995, Claimants Thomas, Soggie, Richards, Green, Graybill, Wiebelhaus, Rasco and Coniston reported for duty at the assigned starting time but were denied the right of work opportunity when the Gang Roadmaster determined that the weather conditions were such that they could not perform work. While the Claimants desired to complete their workday, the Carrier required that they suspend work for the day and only compensated them three hours. Form 1 Award No. 35958
The Organization argues that the Carrier violated the Agreement in this case. The Organization's position rests in part on the fact that the Claimants are monthly-rated employees. Rule 25E, which clearly applies to hourly-rated employees provides that hourly-rated employees are guaranteed three hours of work when required to report to work but then cannot remain on the job because of inclement weather. Further, while the Organization admits that the language of Rule 25D seems to indicate that monthly-rated employees are only paid for hours worked in the event of inclement weather, the Organization claims that a past practice exists of paying monthly-rated employees for a full day's work even if they cannot work because of bad weather. Based on this claim, the Organization contends that Claimant Lee should receive the remaining seven hours for the day he was sent home and only paid for three hours and the remaining Claimants should receive an additional five hours for all days for which they were sent home and only were paid for three hours.
Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. The Carrier contends that Rule 25D is clear and controls this matter. The plain language of 25D provides that in the event of inclement weather, only actual hours worked or held on duty need be paid to employees, "except as provided in Section E of this rule." According to the Carrier, Section 25E is relevant to the instant case in that it explains how hourly-rated employees are paid in situations involving inclement weather. 25E provides as follows:
Thus, the Carrier claims that because 25E states the exceptions and refers to hourlyrated employees Claimants are monthly-rated. The Carrier takes the position that 25D provides for no minimum compensation in circumstances such as these, and therefore in this case contends that the claims should be denied.
After a review of the evidence, the Board finds that the Organization has not been able to sustain its burden of proof in this matter. It is clear that Rule 25D is applicable for the instant case. We note that when the language of the Agreement is clear and Form 1 Award No. 35958
unambiguous, as is Rule 25D, the Board's function does not allow us to overrule that plain language (See Public Law Board No. 4402, Award 26).
Rule 25D specifies that when less than eight hours are worked due to inclement weather, only the actual number of hours worked or held on duty will be paid, with exceptions as stated in Section 25E. Rule 25E provides when hourly-rated employees are required to report at their usual starting time and place, they will be guaranteed a minimum of three hours of pay. Thus, it is clear that 25D applies to monthly-rated employees and such employees are not guaranteed pay in the event of inclement weather, beyond the amount of time they are required to remain at the work site.
The Organization claims that there is a past practice of paying monthly-rated employees a full day's work even if they are sent home because of inclement weather. However, in order to prove a past practice, the Organization must provide sufficient evidence to show that such a practice does exist and the record does not yield sufficient evidence to prove this point. Thus, we reject this argument.
Based on the record in the instant case, we find that the Carrier acted appropriately when it paid the Claimants only three hours on the dates in question. The claim is denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.