service between Columbus and Greenville arriving at Greenwood, a point at which switch engines are working, and switch for a period of thirty minutes, will be allowed one hour overtime at service and engine class rate.) (B) Where no switch engines are employed, through freight engineers and firemen will be paid overtime at engine class rate for making up or putting away their trains at terminals if it accrues under Overtime Article No. 32 (B). (C) Local freight engineers and firemen running in or out of terminals where switch engines are not working, will not be paid for work performed at such terminals unless it accrues on the road miles per hour basis." "ARTICLE XX (Agreement of October 1, 1917-Trainmen and Yardmen) MAKING UP TRAINS AND SWITCHING (A) When trainmen are required to make up their train, or to do switching at a point where a switch engine is employed, they will be paid overtime, this being separate from any other overtime. (B) Through freight and passenger crews will be paid for making up and putting away their trains at all terminals, if it accrues under the terminal overtime rule. (C) Local freight crews running in or out of terminals where switch engines are not located, will not be paid for work performed at such terminals, unless it accrues under the road miles per hour basis." It will be noted that in the current agreements no distinction or reference is made as to whether or not yard engines are used, and the same method of pay is established at any and all terminals. Attention is also called to the fact that road crews were allowed, under the October 1, 1917 agreements, overtime pay for switching at intermediate points where switch engines were employed (Article 33 and 20 quoted above), a provision also eliminated in the current agreements. Road crews have performed switching in yards where switch engines are employed under circumstances similar to those on which this claim is based in numerous instances over a long period of years, and no complaints or claims have been filed by any of the train service employes until recently. The management and employes apparently have been in accord on the interpretation of the agreements. Now it seems decisions or awards of the National Railroad Adjustment Board under contracts, customs and conditions by no means identical with those of the instant case, are sought to be relied upon and substituted for the unmistakably clear wording and intent of our working agreements and long established practices. The employes have mentioned as a basis for their claim rules in regard to separate seniority for yard and road men, a basic day of eight hours or less to constitute a day's work for yard men and others without application to the matters in dispute. Seniority applies, of course, where yardmen are assigned work and the basic day of eight hours is applicable under the same circumstances. The demarcation of seniority, however, does not carry with it, any inherent right in one class of service to perform the work here involved to the exclusion of the other. It is unreasonable and prohibitively expensive to expect yard service to be continually maintained where only an occasional use therefor might arise. In the operation of the railroad, road men must necessarily do some yard work, and our agreements were so written with full recognition of this feature. In the instant case, the switching required ten to fifteen minutes of the road crew's time. In conclusion, we submit that the agreement with the locomotive engineers, firemen and hostlers, Article XV, Section (B), quoted above, stipu lates for final terminal switching and the method of computing payment therefor, and Article XXII (B) of the agreement with the yardmen and trainmen for final terminal delay with the understanding that final terminal switching would be paid for on the same basis; and the retention of this arbitrary in Article XXVIII (A), also quoted from agreement with engineers and firemen, leads inescapably to the conclusion that terminal switching was contemplated in the agreement and excludes any basis for the claim here presented. The position of the Committee is inconsistent with the express provisions of the current agreements. In view of the established practice over a long period of years for road crews to perform switching service of the nature involved here, and the absence of any prohibition in the current agreement, the claim should be declined. Appearance before the Board is desired. FINDINGS: The First 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. The parties to said dispute were given due notice of hearing thereon. The claims made in the instant case cannot be determined without interpreting Section (b) of Article 15 of the contract between the Carrier and its engineers, firemen and hostlers. To determine its application makes it necessary to establish its impact if it is considered alone and not as a part of the whole contract. By its terms it would indicate that the Carrier could arbitrarily use roadmen either for a small part or for the major part of yard work without any right of complaint on the part of the yard crews. But as part of the agreement which contains Section (b) of Article 15, there are nine sub-sections under Article 26. These sub-sections deal with the seniority rights of those engaged in road work and those confined to yard work. The seniority lists are separate and not interchangeable. Article 15 must be given its rightful place in an interpretation of the contract, but should not be so construed that the right gained under Article 26 could be set aside or destroyed without the consent of one of the parties to the contract. We have construed this contract as a whole, and have determined that the yard crews are entitled to yard work in this yard where yard crews have been maintained. The import of this finding must be confined to the facts of this record. There is nothing of record to indicate that Fireman R. O. Shelton filed his claim as provided in Article 32 (b) of the Agreement. Therefore the claim of R. O. Shelton should be denied. AWARD Claim sustained as limited in Findings. BY ORDER OF FIRST DIVISION NATIONAL RAILROAD ADJUSTMENT BOARD ATTEST: (Sgd.) T. S. McFarland Executive Secretary Dated at Chicago, Illinois, this 23rd day of February, 1949. Docket No. 21176 FIRST DIVISION NATIONAL RAILROAD ADJUSTMENT BOARD 39 South La Salle St., Chicago 3, Illinois The First Division consisted of the regular members and in PARTIES TO DISPUTE: ORDER OF RAILWAY CONDUCTORS COLUMBUS AND GREENVILLE RAILWAY COMPANY STATEMENT OF CLAIM: Claim of Conductor F. D. Fariss and crew for 80 miles lap back trip, train 110, September 26, 1944, that being the difference in miles allowed and 100 miles claimed. EMPLOYES' STATEMENT OF FACTS: September 26, 1944, conductor Fariss and crew operating mixed train 110 eastward from Greenville, Mississippi to Columbus, Mississippi were required to leave their train at Indianola, Mississippi and return to Dunleith, Mississippi, a blind siding 10.2 miles west of Indianola for a car of cattle. POSITION OF EMPLOYES: Article 5-a, Conductors and Trainmen's Schedule. In all road service, except passenger service, 100 miles or less, 8 hours or less (straight-away or turn around) shall constitute a day's work. Miles in excess of 100 will be paid for at mileage rates provided. Article 5-b, Conductors' and Trainmen's Schedule in through freight or mixed train service, a straight-away run is a run from one terminal to another terminal and not less than 100 miles will be allowed for each run, excepting specified branch runs. Train 110 is a mixed train operating the entire length of the Columbus & Greenville Railway, 168 miles eastward from Greenville, Mississippi, to Columbus, Mississippi, Columbus being the at home terminal and Greenville being the away from home terminal and crews are so assigned. Dunleith is a non-agency station located approximately 15 miles east of Greenville and 10.2 miles west of Indianola which is an agency and telegraph station. September 26, 1944, conductor Fariss and crew arrived at Indianola on No. 110 and were instructed to leave their train at Indianola and return to Dunleith for a car of cattle that conductor Fariss had not been instructed to move from Dunleith. Train orders to run Extra Indianola to Dunleith and return were issued to conductor Fariss and for this additional service he claimed 100 miles lap back in addition to his regular assigned mileage on No. 110 but only the actual miles made were allowed and the difference of 80 miles declined which is the question before us. It is the contention of the committee that conductor Fariss and crew had completed their tour of duty between Greenville and Indianola and through no fault of their own were required to perform service backward over territory already covered on a separate and distinct train i.e.: Extra: from their regular assignment. If there were no prior awards from your honorable board to sustain this claim, and there are many, the committee believes the facts set forth would do so and we pray that you so find. Oral hearing is desired. CARRIER'S STATEMENT OF FACTS: Conductor Fariss was in charge of train 110, handling passengers and freight, eastbound, from Greenville to Columbus, Mississippi, on September 26, 1944. Train 110 performs all required service, including local work. A shipper at Dunleith, a non-agency intermediate station, failed to flag the train or notify the nearest Agent in advance of a car of stock loaded and ready to move east, and consequently no stop was made there. The shipper then telephoned the Agent at Indianola, another intermediate station eleven miles east of Dunleith, and stressed the importance of handling the stock, intended for "show" purposes, in train 110 that day. Conductor Fariss was instructed to return to Dunleith for the car. At the conclusion of his run, Conductor Fariss made out a time ticket for the trip from Greenville to Columbus, 168 miles, and for an actual extra mileage of 22 miles for the lap back from Indianola to Dunleith, or a total of 190 miles, which the Company allowed and paid at local rates. Several days later, he wrote the Trainmaster to change the time ticket he had previously presented from 190 miles to 168 miles and enclosed a new and separate ticket for 100 miles, or an additional minimum day for the twenty-two miles of lap back service. This represented a difference of 78 miles, now in dispute. The other members of the crew, who are represented by the Engineers, Firemen and Trainmen, filed no claim for an extra day because of the lap back but claimed only an additional twenty-two miles. POSITION OF CARRIER: The claim of the Conductors is based solely on Article V (a) and (b) of the Agreement, in which there is no mention of lap back service. This Article reads as follows: "Article V. (a) In all road service, except passenger service, 100 miles or less, 8 hours or less (straight-away or turn-around), shall constitute a day's work. Miles in excess of 100 will be paid for at the mileage rates provided. (b) In through freight or mixed train service, a straight-away run is a run from one terminal to another terminal and not less than 100 miles will be allowed for each run, excepting specified branch runs." Conductor Fariss was paid for the additional mileage of the lap back in line with his time ticket as originally presented, under the provisions of Articles VI and VII, here quoted: "Article VI. "In all classes of service other than passenger, Conductor's time will commence at the time they are required to report for duty and shall continue until the time they are relieved from duty. The managreement will designate the time for reporting for duty." "Article VII. "On runs of 100 miles or less overtime will begin at the expiration of 8 hours; on runs of over 100 miles overtime will begin when the time on duty exceeds the miles run divided by 12%. Overtime shall be paid for on the minute basis, at a rate per hour of one and one-half times the hourly rate, as shown in Article IV, Sections (a) and (b).” Articles VI and VII are explicit and easily understood, and there is no support in them, or in any other provision of the agreement, for an extra day's pay for lap back service. Existing agreements on some of the trunk lines contain special rules with reference to payment for lap back. These rules provide in some instances for actual mileage or overtime, whichever is greater, or for a minimum day when not in emergency and actual mileage in specified emergencies. This is not true of our contract with the Order of Railway Conductors, because no special method of payment was contemplated by the labor organization or the management of the Railway Company under these circumstances. It was the clear intent of both parties that lap back service should be paid for on an actual mileage basis under Article VII of the agreement, and this understanding has been fortified by the practice of more than twenty-five years, without question or protest until the filing of the instant claim. It is significant that Conductor Fariss presented his time ticket in the usual manner for the Greenville to Columbus trip of 168 miles and for an additional 22 miles for the lap back, or a total of 190 miles, which the Company allowed and paid. Apparently as an afterthought, he then asked the Trainmaster to change his ticket as originally presented from 190 miles to 168 miles and made a demand in an entirely new time ticket for 100 miles or an extra day for the lap back service. Our agreements with the three other Operating Brotherhoods contain the identical article upon which the Conductors rely for this proposed departure from accepted practice, but no claim has been presented for Trainmen, Engineers or Firemen on this or other trips for a minimum day on account of a lap back. The Engineer on train 110, on the run under consideration, had had more than thirty-four years of experience as Engineer and Fireman and at one time had been Chairman of his labor organization. At the conclusion of the trip, he made a time ticket on an actual mileage basis, or for 190 miles, in conformity with the accepted interpretation of the agreement. On February 5, 1943, train 109, handling passengers and freight, westbound, from Columbus to Greenville, performed lap back service in connection with a car of stock, from Elizabeth to Indianola, intermediate stations. The Conductor on that trip, Mr. A. L. Wilbanks, had been in railroad work for more than thirty-five years, the Engineer, Mr. G. W. Miller, for more than thirty-six years. They, with other members of the crew, presented time tickets, not for a minimum day for the lap back, but for the actual additional mileage made, or twenty-eight miles. We may assume that these employes were thoroughly conversant with the rules of a schedule in effect since 1919 and were interested in protecting their rights under it. Their method of estimating the amount due for the day's service is persuasive evidence of a mutual understanding as to compensation for work performed under conditions identical with those in the instant case. We are at a loss to understand the filing of this claim, without precedent in the practice of this road and without supporting provision in the agreement, unless the Conductors were influenced to do so by a misinterpretation of awards of this Board where operating conditions or contract rules, or both, were different from those in the instant case. We would emphasize the fact that Conductor Fariss was engaged in one class of service, on his own run, and that the lap back was made for the purpose of picking up a car of prize stock intended to move in train 110. This claim must be distinguished from those presented to your Board where engine and train crews were called upon to perform different classes of service and sometimes under express contract provisions or specific rules dealing with lap back trips. We submit that, since this claim is not supported by any provision of our agreement with the Conductors and is contrary to the practice consistently followed on this road for many years, it should be denied. |