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(he could have exercised it at Island Yard). He did not return to Roanoke while "exercising his seniority rights." The position of the Carrier is that Mr. Thompson did not make the move on orders or for the benefit of the Company. His move was an incident of his original voluntary action in choosing employment on the work train at an outlying point. Mr. Thompson's move from Lynchburg to Roanoke falls in middle ground between a movement covered by Article 12 (a), where a man moves on orders and for the benefit of the Company for which he is paid, and the move from Roanoke to the outlying point where he moved while exercising his seniority rights, for which the Carrier and the Organizations have agreed there shall be no compensation-Note IV to Articles 12 (a).2 This middle ground is one not covered by agreement. It was a move as detached from the service which Mr. Thompson rendered the Company as any other trip (by railroad or otherwise) that Mr. Thompson might make purely for his own benefit, convenience or enjoyment. The job which the Company had offered through advertisement bulletin to eligible applicants had ended at Island Yard, and the senior applicant (Mr. Thompson) was free to go where he chose until he placed himself on another position under the provisions of Article 26, Section 6 (e), of the Firemen's Schedule, reading:
"When a man's run is cut off he must make application in writing within ten (10) days for his preference and before accepting other permanent employment." (Underscoring ours.)
The fact that Mr. Thompson chose to return to Roanoke, the point of origin for the work train, is wholly immaterial. It was in no sense a "forced" move
B-THE CASE OF ENGINEER SWANN
The case of Engineer Swann is unique. Superimposed upon a situation which has arisen on this property but six times in ten years, we have in his case the coincidence of this engineer bidding in and being assigned to the regular position which he previously occupied as an extra man. When the work train was cut off at Island Yard on October 25th, Mr. Swann's status was that of a regular man. By the voluntary exercise of rights of seniority, Mr. Swann forfeited the status of an extra man to whom there would have been a conceded obligation to return to Roanoke at the Carrier's expense. Mr. Swann did not travel from Lynchburg to Roanoke while "exercising his seniority." At the same time, he did not return to Roanoke on orders or for the benefit of the Carrier.
The Carrier requests that the claims be denied.
(Exhibits not reproduced.)
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 waived hearing thereon.
It seems to us that the question of whether these two men got to Island Yard at their own or the Company's expense is immaterial here. They were there under the bulletin doing work train service "between Roanoke and
2 Note IV: "No compensation shall be paid to employes for deadhead trips made when exercising their seniority rights."
Crewe. Their home terminal was Roanoke. The work train was made up out of Roanoke. There is nothing in the bulletin to sustain the carrier's contention that the job had ended * ** at Island Yard." The fact is that these men were relieved at Island Yard and the work train cut off there. What their rights were under the bulletin is another matter. The carrier states that Article 12 (a) “was a general statement of principle, and its application to practical situations as to what constituted deadheading for the benefit of the company developed under agreed practices."
Following that reasoning here with reference to Engineer Swann, we have this situation. Engineer Swann and Fireman Monk worked this train out of Roanoke. Monk was returned to Roanoke at company expense, the carrier admitting its obligation to pay him, and there seems to be no dispute as to the basis of pay as to him. Swann bid in the job and at a point outside of Roanoke continued on it as a regular man. Had he remained an extra man the carrier concedes it was required to return him to Roanoke. The rules make no distinction between regular and extra men under these circumstances. In the absence of anything in the rules or the bulletin to the contrary we see no reason why he should not be returned to Roanoke at company expense the same as Fireman Monk.
Fireman Thompson reported to the job at an outlying point. He did that under the provisions of the rules and subject to the bulletin. Unless there is something in the rules otherwise, he had the right to be returned to his home terminal that attached to the assignment.
Fireman Monk was relieved from duty at an outlying point, because his services, under the rules, had terminated (he having been supplanted by a seniority holding fireman). Fireman Thompson was relieved from duty at an outlying point, because his services were no longer required. Having paid Fireman Monk while returning to his home terminal, we see no reason why the same treatment should not be accorded Fireman Thompson.
The claim is allowed, the pay to be calculated on the same basis as that of Fireman Monk.
Claim sustained per Findings.
BY ORDER OF FIRST DIVISION
ATTEST: (Sgd.) T. S. McFarland
Dated at Chicago, Illinois, this 23rd day of August, 1943.
Docket No. 15499
NATIONAL RAILROAD ADJUSTMENT BOARD
39 S. LaSalle St., Chicago 3, Illinois
The First Division consisted of the regular members and in
PARTIES TO DISPUTE:
BROTHERHOOD OF LOCOMOTIVE FIREMEN AND
BOSTON AND MAINE RAILROAD
STATEMENT OF CLAIM: Claim F-1616, Fireman F. W. Rowe, White Mountains-Passumpsic Division Seniority District for one (1) hour's extra pay on 14 dates in July, 1932 for throwing switches at Lakeport, N. H.
JOINT STATEMENT OF FACTS: Fireman Rowe was regularly assigned to passenger train No. 17, Lakeport to Woodsville. This train started at Portland, Maine and was operated to Woodville, N. H. where it was delivered to the Canadian Pacific Railway. Train crew covered the train Portland to Woodsville. Engine crew from Portland on arrival at Lakeport Passenger Station ended their assignment and Fireman Rowe's engine coupled onto rear of train hauling it to Woodsville. Train was due at Lakeport at 11:20 P. M., departed at 11:27 P. M.
Fireman Rowe took his engine at engine house, backed down thru yard track to crossover north of station, remained there until train stopped at station, then he was ordered by the Trainmaster to throw switches of crossover, reset one main line switch, then back onto train. Claims were filed contending that trainman of train 17 should throw switches necessary to make movements. Claims were supported by Committee and declined by Carrier.
Oral hearing is waived by both parties.
POSITION OF EMPLOYES: That claims filed by Fireman Rowe, are supported by the following rules:
FIREMEN THROWING SWITCHES
ARTICLE 11, SECTION 12
"Firemen will not be required to throw switches at points where this work should be done by trainmen, yardmen or switchmen."
That when the Carrier failed to relieve Fireman Rowe of throwing switches, by having Trainmen of Train 17 do this work, they are obligated to pay him under the extra work rule quoted below:
ARTICLE 8, SECTION 14
"In case of emergency, regular firemen called upon to do extra work while en route, between their scheduled trips or before registering off duty will be paid:
For less than one hour or less than 12%1⁄2 miles
One (1) hour.
For one hour and less than two hours, or 121⁄2 miles and less than 25 miles
Two (2) hours.
For two hours and less than three hours, or 25 miles and less than · 371⁄2 miles
Three (3) hours.
For three hours and less than four hours, or 371⁄2 miles and less than 50 miles
Four (4) hours.
For four hours or over, or 50 miles or over
Time consumed in doing emergency work en route will be deducted from overtime, made outside scheduled or assigned run.
If called after registering off duty, or during their lay off, they will be paid full time. Overtime rates will apply.
(a) Section 14 will not apply to firemen in other than passenger service, except for work performed at initial and final terminal. For work performed at such terminal payment will be made at pro rata
The payment under this rule has been that Firemen who are required to throw switches where the work should be done by Switchmen, Yardmen or Trainmen, are allowed one (1) hour's pay for throwing switches necessary to make the movement at a given point.
The Carrier in declining this claim, contend that the throwing of switches required of Fireman Rowe, is not a case which under Article 11, Section 12 applies where the work should be done by Trainmen, Yardmen or Switchmen, as there were no Trainmen, Yardmen or Switchmen available at the time the move was made to do this work. That the claim is not justified under the Rule or Interpretation thereof, as contained in Decision F-12. (Carrier's Exhibit No. 1.)
Committee contends that the throwing of switches required of Fireman Rowe could have, and should have been assigned to Trainmen of Train 17, on their arrival at Lakeport. The Carrier knew this work would be required when arranging the movement of Train 17. That the rule quoted, also Decision F-12 does not relieve the Carrier of delegating this service to available Trainmen.
Decision F-12 is a regulation agreed upon as an interpretation of Article 11, Section 12. This regulation was made after a series of claims were filed with the Train Service Board of Adjustment (Eastern), case deadlocked and later filed with the United States Board of Mediation, Case No. GC-471. Committee submits the Award in full as Exhibit No. 1, dated May 27, 1931. The dispute regarding switch-throwing in this case, was brought about by the Carrier making extensive changes in building a new engine terminal at Charlestown, also the building of a new classification yard in this vicinity. Tracks were re-located and a general change made in the characteristics of the yard, at which time the services of many switch-tenders were dispensed with. At many points where there were switch-tenders employed, these
switches were connected with yard towers-other switches formerly thrown by switch-tenders were changed to spring switches, which automatically kept them in position to route engines without the necessity of employing switchman or making it necessary for firemen to throw switches. The claims disposed of, under this Mediation Award, consisted of many brought about by not having completed the operation or corrected conditions during the making over of the change of operation around this location.
In progressing this claim the Committee at no time have asked or claimed that the trainman of Train 17 go to the engine house to accompany Rowe's engine to the train, nor has the Committee advanced in this claim that the Trainman should accompany the incoming engine of Train 17 from the Passenger Station to the Enginehouse, as set forth by the Carrier. In the latter movement, Train 17 had departed and under the interpretation of Article 11, Section 12, there were no Trainmen available for this movement.
It was the regular assigned work for Fireman Rowe to get his engine out of the enginehouse, proceed to the North crossover switch to the main line, and remain there until the arrival of Train 17 from the Lakeport Branch. The schedule of Train 17, as shown, arrived at Lakeport Station at 11:20 P. M. and departed at 11:27 P. M. This train arriving at the main track switch connecting the Lakeport Branch to the main line, under Operating Rule of the Carrier, was governed as follows:
"Trains before moving from a siding or a branch track to a main track protected by block signals, must wait three minutes after opening the main track switch, to allow a train moving in the same direction that may be approaching, time to come to a stop before reaching the switch. Engineman will give signal 14 (b) and receive signal 12 (c) from rear end of train before permitting train to foul the main track. This will not relieve employes in the train service from promptly and properly protecting their train as prescribed by Rules 99 and 893, or when conditions require, from waiting as much longer as may be necessary to insure safety. It will not apply at meeting points on single track when the train to be met has just passed the switch and is occupying the main track or where governed by interlocking signals or by Signal Control System or when switching on main track under flag protection as prescribed by Rule 99.
Trains or engines standing on sidings or cars left on sidings, must clear the fouling point."
Committee contends that the Trainmaster should have instructed the Trainman setting the main track switch to proceed to the main track switch at the South end of crossover to be used by Rowe's engine, a distance of 276 feet, set it, then proceed to the North crossover switch, where Rowe's engine stood, a distance of 245 feet, set that switch (left as set for the engine cutting off to go to enginehouse after train departed), follow engine to the main line switches, and re-set same and back to train, couple engine onto the train, placing the Trainman at the head end of the train, his proper station. The Trainman arriving at Lakeport on the rear of the train take train markers, proceed to the forward end of train, place his markers, and cut off the incoming engine, placing him at his position on the train. If, as the Carrier states, it is the duty of the train crew to look after the passengers and their belongings, they both would have had equally the same time to do this requirement as they had by the routine they did use in getting from one end of the train to the other.
As stated by the Carrier, a light engine may be moved not more than ten (10) miles light without being accompanied by a Flagman, and Firemen are required to set switches, without extra compensation, except if required to dɔ