Award No. 2442
Docket No. 2079
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Dudley E. Whiting when the award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 13, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (Machinists)
WABASH RAILROAD COMPANY
DISPUTE: CLAIM OF EMPLOYES:
(1) That under the current agreement Machinist Allen Newman was improperly compensated at straight time rate for service
performed on September 13, 1954 and October 11, 1954.
(2) That accordingly the Carrier be ordered to compensate
the aforesaid Machinist additionally in the amount of four (4)
hours pay at the straight time rate for each of the above dates.
EMPLOYES' STATEMENT OF FACTS: Allen Newman, hereinafter
referred to as the claimant, is employed by the carrier at its Delray Roundhouse at Detroit, Michigan with a machinists' seniority date of August 10,
1926. The claimant's regular asignment is 7:00 A. M.-3:00 P. M., shift,
Saturday thru Wednesday, rest days Thursday and Friday.
Machinist Newman had instructions from his supervisor to work the
vacation vacancy of Machinist 1. M. Evans, September 1, 1954 to September
12, 1954, inclusive. This asignment was the 3:00 P. M. to 11:00 P. M.
shift, Wednesday through Sunday, Monday and Tuesday rest days and involved a change of shift. Newman did not present time claim for change of
shift when he changed from his shift, 7:00 A. M. to 3:00 P. M., to Evans shift
3:00 P. M. to 11:00 P. M. However, when he returned to his regular shift
on September 13 he did present time slip for eight (8) hours at time and onehalf rate for change of shift and this claim has been declined up to and including the highest designated official.
Newman was then instructed to work the vacation vacancy of Machinist
Sivak which started October 11, 1954. This assignment was the 11:00 P. M.
to 7:00 A. M. shift. When Newman changed shift on October 11, 1954 he
presented time card for eight (8) hours at time and one-half rate which was
denied. He did not claim overtime rate for change of shift when he returned to his regular assignment.
[7297
2442-18
746
quirement of a uniform by the occupant of a position, which the
Carrier had not previously required to procure a uniform, is a
change in working conditions warranting an affirmative award.
With this we cannot agree.
If a practice were proven which had
not been abrogated or modified by the collective agreement, the
practice could not be unilaterally changed. But such is not the case
in Award 726.
As a precedent, an award is no better than the
reasoning which supports the result.
We are obliged to say that
no rule or practice is shown to support Award 726, and it is quite
evident that none could be shown.
Consequently, we are required
to say that the affirmative award based on the facts recited in the
Opinion is a complete non-sequitur.
It is fundamental that the burden is upon the Claimant to show
a violation of the collective agreement, or a practice which by mutual acquiescence over an extended period of time, estops the parties, or either of them, to deny its validity.
In the present case, it
is shown that most Patrolmen are required to wear uniforms and no
objection has been made thereto over the years. The position here
involved was bulletined as one requiring a uniform. No objection
was made to the form of the bulletin and it was bid in by Claimant
with full knowledge that a uniform was required to meet service
requirements. Nowhere is it pointed out that the Carrier ever
agreed to pay for them and it is shown indisputably the Carrier never
has done so. There was, therefore, no practice or agreement requiring such payment. A basis for liability on the part of the Carrier,
therefore, does not exist." (Emphasis added.)
The contentions of the committee should be dismissed and the claim
denied.
FINDINGS:
The Second 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 this dispute were given due notice of hearing thereon.
Disposition of this claim is governed by our Award No. 2440 (Docket
No. 1996).
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: Harry J. Sassaman
Executive Secretary
Dated at Chicago, Illinois, this 3rd day of June, 1957.
DISSENT OF LABOR MEMBERS TO AWARDS NOS. 2440, 2441, 2442,
2443, 2444, 2445, 2446, 2447, 2448, 2449, 2450, 2451,
2452, 2453, 2454, 2455, 2456, 2457, 2504.
We are constrained to dissent from the majority findings in the aboveenumerated awards for the reasons set forth in our dissents to Awards Nos.
2083, 2084, 219 7, 2205, 2230, and 2243.
2442-19
7 4 7
It is our considered opinion that Awards Nos. 1514, 1806, and 1807 of
the Second Division should have been followed and the overtime rates embodied in the schedule agreements should have been applied.
R. W. Blake
Charles E. Goodlin
T. E. Losey
Edward W. Wiesner
James B. Zink