FIRST DIVISION NATIONAL RAILROAD ADJUSTMENT BOARD CHICAGO, ILLINOIS VOLUME 118 AWARDS 16621 TO 16700 CHAMPLIN-SHEALY COMPANY 100 N. LaSalle Street Chicago 2, Illinois 365 Printed in U. S. A. Docket 24361 NATIONAL RAILROAD ADJUSTMENT BOARD FIRST DIVISION 39 South La Salle Street, Chicago 3, Illinois With Referee John W. Yeager PARTIES TO DISPUTE: BROTHERHOOD OF LOCOMOTIVE ENGINEERS ATLANTIC COAST LINE RAILROAD COMPANY STATEMENT OF CLAIM: "Discipline Case: Engineer D. G. Lemmon, Savannah, Ga., given thirty (30) demerits in connection with altercation with Yard Foreman C. K. Calhoun, June 23, 1943. Request that the demerits be removed and pay for all time lost. (A.C.L. Docket 231-841). FINDINGS: The First Division of the National Railroad Adjustment Board, upon the whole record and all the evidence, finds that the parties herein are carrier and employe within the meaning of the Railway Labor Act, as amended, and that this Division has jurisdiction. Hearing was held. After investigation, the claimant was assessed thirty demerits because of an altercation which he had with a yard foreman in a yard of the carrier. The discipline was obviously based on the theory that the claimant was responsible for the altercation. If he was responsible either in whole or in substantial part for the altercation, which was described by the witnesses at the investigation, it cannot well be said that the discipline imposed was improper or excessive. The weight of the evidence when analyzed leads to a reasonable conclusion that the yard foreman was justified in thinking that his safety was being threatened and in acting in defense thereof. AWARD: Claim denied. NATIONAL RAILROAD ADJUSTMENT BOARD ATTEST: (Signed) J. M. MacLeod Executive Secretary Dated at Chicago, Illinois, this 21st day of May, 1954. Docket 25467 NATIONAL RAILROAD ADJUSTMENT BOARD FIRST DIVISION 39 South La Salle Street, Chicago 3, Illinois With Referee John W. Yeager PARTIES TO DISPUTE: BROTHERHOOD OF LOCOMOTIVE ENGINEERS ATLANTIC COAST LINE RAILROAD COMPANY STATEMENT OF CLAIM: "Engineer C. C. Cothran, High Springs. Claim for 140 miles, each date, account of regular assigned local freight annulled December 24, 25, 1947, and all similar claims on same dates and subsequent dates. (A. C. L. Docket No. 204-984)." EMPLOYES' STATEMENT OF FACTS: Engineer C. C. Cothran was regularly assigned to local freight Trains 570-571 between High Springs, Florida and Lakeland, Florida, a distance of 140 miles. On December 24 and 25, 1947, which were two of the regular bulletined days, this job was assigned to operate, these regular assigned bulletined local freight trains were annulled by the carrier. Engineer Cothran's time claims for the two days the trains were annulled were not allowed by the carrier, as provided under guarantee of Conference Agreement dated June 17, 1939. Due to the necessity of taking care of varying conditions over the entire system, because of short branch lines, progress and other conditions, in order that all work could be more uniformly protected at an understood designated pay covering such work, the Committee and the Management join in writing and accepting the Conference Agreement dated June 17, 1939, a copy of which is hereto attached and marked as Employes' Exhibit No. 1. POSITION OF EMPLOYES: Memorandum of Agreement referred to, dated June 17, 1939, reads in part as follows: Paragraph No. 7: "When it is known that a freight run will operate over approximately the same territory for as much as six days in a week, the run will immediately be bulletined as a regular assigned run unless otherwise agreed upon between the company and the respective committees. This paragraph is not applicable to runs being operated in a through freight pool unless agreed to by the respective committees." Article 26(b) of the Engineers' Agreement reads: "The oldest engineer in the service of the railroad, if competent and reliable, shall have preference of runs, in his seniority territory." Engineer Cothran accepted this assignment under the above article. The first paragraph of the referred to Conference Agreement in part, reads as follows: Paragraph No. 1: "In assigned freight service where assignment is set up for crew to definitely operate over certain territory, it is agreed that when for any reason the mileage of such assignment is not made on any day that crew performs service on the assignment, the full mileage of the definite regular assignment for that day or trip be allowed in accordance with provisions of Article 5(a) of the Agreements, * Paragraph No. 8 of the Conference Agreement reads as follows: "This agreement shall not apply to through freight pool crews. Pool freight crews will not be used to avoid provisions of this agreement, except as may be agreed to between the company and the respective committees." It is the position of the Employes that Engineer Cothran accepted this assignment, which was bulletined as a six-day job. As provided for under Conference Agreement, Paragraph No. 1, above referred to, Engineer Cothran would be entitled to payment of claims. Article 5(a). "Basic Day. In all classes of service covered by Article 4, 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 rate provided for, according to the class of engine or power used." Please note Paragraph No. 1 which deals with full mileage of assignment and should not be construed as to apply to routine work on the days the job operates, because the agreement defines this meaning to Article 5, Basic Day, of the agreement. The carrier contends that the language used in Paragraph No. 1 of the Conference Agreement referred to "* ** such assignment is not made on any day that crews perform service on the assignment," gives them the right to annul this job without being liable for payment on that day or days. The object of the language referred to above has only one meaning. It was and is intended to protect the carrier against a guarantee for the seventh day that such bulletined job was not scheduled to operate and does not give the carrier the right to refuse payment on a job on any of the six designated days set out in a week under the bulletin covering the assignment. To further substantiate the position of the Committee that the engineer is entitled to pay for a six-day job under the referred to Conference Agreement, you will note that the language used in Paragraph No. 1 refers to a day and not to days, which the Committee contends is the seventh day for which there is no guarantee for payment. It is further the position of the Committee that under the language used, the engineer is guaranteed pay for the six calendar days for which the job was bulletined to definitely operate, and that the carrier cannot annul the assignment for any one of the six bulletined days to avoid payment, as provided in this agreement. The Committee affirmatively states that all matters referred to in the foregoing have been discussed with the carrier and made a part of the particular question in dispute. The Committee respectfully requests that this claim and all similar claims on same dates and subsequent dates be allowed. The Committee desires to waive oral hearing, provided such hearing is not requested by, or granted to, the carrier. |