PARTIES,
'-'.DISPUTE
-w':"_~
STATEt4ENT 9-
OF of -instruction ~6n Operating/~Timetable/Saf ety~. rules
f
'-on'~`the-a1_`r1-,own timd submitted by 'or on behalf
0
e 3nty~-f6drr'(74) "individuals working under'th'e'-`y~
f*-'t'he 'current agreements of either-.
6"is-ions'b
e~'Nor olk' n,. i way-COmpany,~ -f
f 'an_d~ ormer
rg..
Z~A
inian Rai
r
lway company, ormet Pittsburch'and
S't'~Vi'rginia'"-'.Rai:lway'Comr)an~',~.,-foi~r~er'Ne~4'Yoi:k,
agg,and,
t.,-,LOU
S,Railroad-CQmpany'or f
sh and' the January 10',1962
or Septemb6r,B, 1966 mercer agreements
Board. 'upoh- the whole record and all the
dence,'-.~f inds '.-tbat: 'the employee
or
employees ~and
ier. jnvolve'd'-in this dispute - are
I
respe c tively
66;and-6arrier ~ithin the meanin o
w
g f the
R a way ~"Labor.,_- Act as'-amended; that this
Board-.
h juri . sdict,
a ion over thedispute involved herein
t
. I--,
.:-t.and e parties.to said dispute were given due
'ti e f hearing thereon.
no
I
c
70
I h oard h~s k6rty,two.separate c~laims.'before it
e t e B
four indi,~iduals, there is one
'1
-question involved in each claim. Carrier ha~ reauired-
centra
ignal-employees to . attend:book of rules classes on their off-
uty~,%time. The b6lieve'tha't,they should be paid for the time
y
spent"in~ the classes.. Some"of the claims also.seek pay
ment for
xperi . s . es'incurred -in' atten8in'g the classes. There are a number
f prci6edural questions which have been raised in connection with
he lj:iicr and handling of.'the claims. in view of the position
hich-11the Board.must take-on'the central'question, it
Will
no
e necessary to r6solve-the~procedural questions.
_'.~"Payment-.of.:,ti e attendinq,Book of Rules classes~_.'
me sp n ri
andled. by.many Public Law
is -a ~,question which has bee~_.'t Boards.
'i 'nd of-decision is clearl ~in. h directio
and the.,NRAB. ..:The~ re y t e n
holding t at -i-~_ ot considered work or service and
h such time" s~n
Z.-.
there f dre,,'is not.:subject to.".,6ompensation rules. Under the
principle of Stare Decisis the Board is required to find that
a'i-:tbe time
.,spent bysignalmenip attending the Rules classes is
-not work or service and Carrier is not reauired to comDensate
them for:such time.'.
Some of the claims before the Board seek comDensatio'n
un er,rules governing travel -.-experi se. ince the finding,must
d
be that the employees were not engagred in work or service, rul6s~
which provide travel expenses when engaged in such service are.
PUBLIC LAW BOARD NO. 1776
BROTHERHOOD OFIRAILROAD SIGNALMEN
-and
1. 1 !
NORFOLK AND WESTERN RAILWAY COMPANY
~.2
7
1 . . .....
Public Law Board 17,76
Case No. 1 74
Award No. 'I.
'iclaim for nav~_aind/or expenses for attendin
classes
'(VGN) or re-examination
as em take will, if. possible,
be conducted working hours without
deduction
employees
The former VGN and foi-mer~ h'ABboth. had rules which the
employees seek to apply.here. They reads
Rule 1009: Such examination
may be required to
nducted during regular caork tion in pay therefore."
Rule' 7.i.. ..Employees, when requested by the Managemen
::will
'take such examinations or :`re-examinations as may
,,be. required rfrom dine.to time. ;,:,The. Carrier will set the ''
time for-
t .so
es
to cause: the
:least ~_
;; F,`
.~"inconvenienced £o employees,-
and
c;here . reasonably
poaszble. , -
`F. , -~.... during:-rsgular'working
.hours-" ~'
::i?=v:
yq .w.
r
.F.F~
_-,rte
'^CF,-.s;Yr
.r,oi.,.;.·;'.:~1' ~ k _ t:>W _ 3 - ~ i
''
W . 1 ~ P~
"= The.'employees-.have shown"that-sagnal employees.'were-,given': _
rules .-instructions, .prior £o ',the.present;program; 'during,cabrYxncr
- ·` =:'hours:They argue that a'practice-has:.developed An": that' it : _
_~.'-arose':under theyrules.'shownv'above:-..'Ca'rier~`carinotvden "that
Y
- w.
;~:signal.employees'formerlv were given rules-classes'durW g , ',
,t .
.,work time but
itinsi'sfs
that
no
practice hate developed ~ `'
· rf of ~ it
. yThe'mere.fact That a~thW g.has been done:nn 'a'certain `
` way-:'does.:.not mean' that'''it has'_assumed a contractual status which
'that it :'must '-contnue''to `be
done'
in : the same'
way':
_,.In' .
~· order-." for
:a
particular' method
ao
.become ,the°coritractuallv ~ - '
:.:agreed-..iipon way 'to. .proceed 'there.must_.be
a
showing that .the':
-:: arties'mutuall -~ _ ''
- p y,understood'that the Agreement requited the-'
~:`,'particiilar course of . action:
n?
any.:
things ire done .by what
'.has-.beem.described'`as "happenstance";;that. is :the particular `
way'.=ii.`which a.thing'`s done';:~ismot'the"result 'of.a.mutual
_:.`determiiia£ion that `a'duty',.arises'under-the`Agreement. The -' w
;'particular way in 'which it is done just happened, and no'mutual
'-:;determination can be ·seemin. it.' - F - -
_ __ `' ~ :TheEmplopees filed a'Section Six notice which~ysought
~.'fo iarite-iiito the Agreement
'a
requirement that -book of rules .` _
=.vclasses'would be given on paid time. 'Not surprisingly, Carrier.
_ ·.'`insists that the.filing of the notice is conclusive proof -' - _
that`='the employees.understood.that their. agreement did not _
;.:':require Carrier. to_ give the: classes on paid time.' The ,employees, ,_of course, disagreed. They.'~insist.that they only sought
-
Clar~:Lfication',of ambiguouslanguage.arid extension of that
_-_ -: language -to the Agreements om:.the, property which did not'contafn `it'°-- _- '
,. .The Section .Six notice, b, ytsel~f . is .,not ~aoricl.usive .proof
.-of the~employees' understanding that their agreement did not` _
;:' require.Carrier'to schedule 'the rules, classes on paid time.`. - -
- -'' It isvevidence bearing 'on the question;-and it must b-a considered'
-"
-·
in connection with-other evidence of. record. There is no sho4·ina _
-._ that :ahe parties' ever' discussed the matter, prior
to
the Section-'- '~`=..-_ -_
-Six. notice,
or
that either side had,.taken a ,position with respect":."--
::. to the disputed language. Carrier argues that Rules 71 and 1009
- `.only,pertain to examination such as eye 'examinations or physical
examinations. It must be said that the use of .the word examina--
other qualifying language does lend-force_to,Carrier's=
argument. It is common in the industry to refer to such classes
as "book of rules classes" and it is difficult to accept the'
thesis that persons who intended to express agreement that time
for such classes had to be paid would limit their expression
of that agreement to a reference to "examinations" or "re-examinations".
-The Board has a clear duty to insist that-both parties
live
tip
tothe Agreement they have made. On the other hand,'
_--it has no business extending or adding to tire Agreement. If it
- w'~=~`.
is to find that ambiguous language plus a particular course off. '
~:- action, add
up;
to °a'rpractice'which it will enforce, since.it '
- - __ -_' .represents an oblicratiori which is a part of the Schedule Agreement, .. -
.~_'x'~=:~''
it must' be .able-to%do'.s6 -with,
a
settled .belief that the evidence .: _
v='"~'~_-.-'-supports:_tIiat._finding:wThe-bu>^den of proving ,the elements'riecessary.`:.`;_~;v?
--.:·e:~:-to,support that belief..-is:ori~ the proponent.' When
all is
.said and ..'.`,.'-'~:'`'""'
- '~;,'~:~_ done=ahe -fact ,~,remains,ahat=here ;there _is- si m 1' , too much doubt:
-.' - - -
- --`-,:,The.'preponderence'of'the 'evidence does not: support the: contention.'_,
Nw~;=,._
o£ the'.employees _thatanen~orc2able practice existed. Carrier:- _
._ _=,:
:;did schedule classes. ow 'paid-.tirne in the past. Hotnever.;'there.~is':
.' 'no
showing ,that either party; 'ever connected that.action with-Rule
` _-
_~=:`1009-and Rule 71._ The rules'. themselves ;lend no real- support: _the _~`;:~_.
_.employees
.case .for`~.it is .d'ifficult to believe. that, experienced - _ _ '
__-r.:negbtiators;-in this industry-would have 'framed them as they are' _
- _ ~='framed--if a conscious intention existed to,apply them to book:: -
- - -~.,of rules .classes ,. In addition, some weight must be given to :the.'
_`_
_ ''employees'.'sectioir~six notice: 'On balance, the finding must-'be
' _ `':-that the employees~tvere unable to show the existence of a binding . -_ .:
:~ past-.practice .under the VGN and WAB rules: The other sections of the_~ -:
- - -''property have no.rule similar to Rule 71 and 1009._. The finding
- that-no enforceable practice exists which would permit the Board
..',to direct payment-for time spent in Book of Rules classes applies
--',-. to the entire property.
,_, " ' _.'''The
employees have argued that as to certain claimants the
_:failure to pay for time.spent,in the Rules classes violates the
Merger Protective Agreement applicable to those employees. The
applicable agreements contain arbitration clauses which provide
.the means of resolving disputes over their interpretation and'
application. The Board believes that disputes involving the merger
-agreement should.be referred to the,Committ'ee established __
:,to handle such disputes.
_'::
AWARD ;., - -- , : : -. _ ;., . _ : ,, . ., `, ;_::,.`: _ ,. ,:.
_Claim denied. Carrier did not violate the schedule~agreements
oth '-property when it required signal'employees to attend book of
n e
':`- ' . :.
-rules 'classes on their own time.
Employee Member -. C~Li_'.1."/c ~=%.
Dated: ;August~7.4; 1.97$,-..
:_ ....
William Edge£t
`Chairman and Neutral Member
3.
X
AV
Fox . ..
Carrier Member