Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37746
Docket No. MW-38221
06-3-04-3-105
The Third Division consisted of the regular members and in addition Referee
Steven M. Bierig when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Texas Mexican Railway Company
STATEMENT OF CLAIM
:
"Claim of the System Committee of the Brotherhood that:
(1) The dismissal of Track Inspector P. Benavides for alleged
violation of GCOR Rules 1.5 and 1.6 was arbitrary, capricious, on
the basis of unproven charges and in violation of the Agreement
(System File EPTM-03-91/236).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant P. Benavides shall now `. . . be compensated
for all loss
of time starting from June 9, 2003, and still continuing, including
the reinstatement of all seniority rights unimpaired back to him,
for all vacation rights and including all personal expenses to be
reimbursed back to him while driving from his home to the Texas
Mexican railway Yard, while attending an investigation at 10:00
AM at Laredo, TX ....
FINDINGS
:
The Third Division of the Adjustment Board, upon the whole record and alt 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.
Form 1 Award No.
37746
Page 2 Docket No.
NM-38221
06-3-04-3-105
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
At the time of the incident on June 9, 2003, the Claimant had established
seniority as a Track Inspector with approximately 31 years of service. The Claimant
was arrested by federal authorities in connection with an alleged drug ring
transporting contraband drugs across the border and past customs by means of ontrack hi-rail vehicles. The Claimant was notified on August 1, 2003 by the Carrier that
he had been found guilty of the charges and was being dismissed from service.
It is uncontested that the criminal charges against the Claimant were dismissed
and the Claimant was reinstated to service. Thus, a portion of this claim relating to the
Claimant's dismissal is moot and no longer a matter in dispute. It is also uncontested
that the Claimant was provided full backpay for the time spanning his dismissal date
until his date of reinstatement. However, the question raised by the Organization is
whether the Claimant is entitled to pay for overtime, holiday and vacation time for the
period during which he had been dismissed. The Organization asserts that he was
entitled to said compensation. The Carrier contends that Rule 17(e) requires payment
only for full-time regular hours.
Rule 17(e) states:
"If the charge against the employee is not sustained, it shall be stricken
from the record. If by reason of such unsustained charge the employee
has been removed from position held, reinstatement will be made and
payment allowed for the assigned working hours actually lost, while
out of the service of the railroad, at no less than the rate of pay of
position formerly held or for the difference in rate of nay earned while
out of service." (Emphasis added.)
The burden of proof rests with the Organization. Both sides have presented
precedent to support their position. However, we find that the precedent presented by
the Organization is insufficient to sustain the claim.
Form 1 Award No. 37746
Page 3 Docket No. MW-38221
06-3-04-3-105
In Public Law Board No. 3012, Award 1, Referee Dolnick wrote:
".
. . It is a well established principle supported by numerous awards of
the National Railroad Adjustment Board and Public Law Boards that
an employee wrongfully deprived of work and does not actually work,
is not entitled to penalties such as overtime pay and arbitraries. These
latter penalties are payable only when work is actually performed."
The parties to the Agreement called for compensation for "assigned working
hours." Had the parties chosen to include additional compensation such as overtime
or other benefits, they could have done so. The Board therefore finds that the
language of Rule 17(e) means that only those hours actually assigned are
compensable; not those hours that are speculative. Thus, the Board concludes that
the Carrier acted properly when it compensated the Claimant only for the regularly
assigned hours.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 21st day of March 2006.