The Second Division consisted of the regular members and in
addition Referee J. Harvey Daly when award was. rendered.
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Carmen )
11 P. M. to 7 A. M. 11 P. M. to 7 A. M. 11 P. M. to 7 A. M. 11 P. M. to 7 A. M. 11 P. M. to 7 A. M. 11 P. M. to 7 A. M. 11 P. M. to 7 A. M.
12 Mid. to 8 A. M. 12 Mid. to 8 A. M. 12 Mid. to 8 A. M. 12 Mid. to 8 A. M. 12 Mid. to 8 A. M. 12 Mid. to 8 A. M. 12 Mid. to 8 A. M.
EMPLOYES, STATEMENT OF FACTS: The Missouri Pacific Railroad Co., hereinafter referred to as the carrier maintains a train yard at Kansas City, Missouri, including a running repair track identified as "spot rip track", where over 300 men are employed in the car department. For many years the men employed in the car department worked on a three-shift opration, i.e., twenty-four hours per day with three (3) starting times - 7:00 A. M., 3:00 P. M. and 11:00 P. M. On January 6, 1961, in addition to these three-shifts, carrier established a six-shift operation at Kansas City with starting times of 7 and 8 A. M.; 3 and 4 P. M.; 11 P. M. and 12 Midnight.
Claim was filed with carrier contending that the six shift operation established January 6, 1961, was in violation of the controlling agreement, and said dispute is now before your honorable board pending adjudication and is identified as Docket 4198.
advertise the new jobs improperly denied the employes the right to exercise their seniority to the position of their choice.
When carrier made its initial move on January 6, 1961, (Case covered your Docket 4198) notice was posted abolishing the old assignments. Also notice was posted advertising the new assignments.
Carmen named in part 2 of "Claim of Employes" are regularly employed by the Carrier as Carmen and are hereinafter referred to as claimants.
This dispute has been handled with all officers of the carrier, including the highest designated officer of the carrier, designated to handle such disputes all of whom have declined to make satisfactory adjustment.
POSITION OF EMPLOYES: It is respectfully submitted that the employes have abundantly shown that carrier's action in establishing in excess of three (3) shifts of carmen in the train yard at Kansas City was in contravention of the controlling agreement.
With respect to the issue contained in the instant case, i.e., carrier's failure to abolish by bulletin the old jobs and advertise by bulletin the new jobs created by notice dated April 14, 1962, quoted in the employes' statement of facts, we respectfully submit that the proper procedure under the rules of the controlling agreement was to abolish the jobs on which the starting time was changed and re-bulletin them so that the principles of seniority could be complied with. Rule 13(a) of the controlling agreement reads:
The provisions of Rules 13(a) and 21(a) when considered together make it abundantly clear that any time a job is disturbed by changing starting time, rest days, work location or duties that it is subject to be abolished and re-advertised.
Moreover, the record, employes' reveal that carrier is fully aware of the requirements of the agreement for they show that when carrier improperly and arbitrarily changed the starting time of certain jobs in the train yard at Kansas City in January 1961, it abolished the jobs on which change was made, and re-advertised them as new jobs.
Carrier by its arbitrary action deprived claimants of the right to remain on a job having a starting time of their choice, seniority permitting, and also deprived other employes at Kansas City of the right to exercise seniority to jobs having a starting time of their choice.
The procedure followed by carrier in the instant case not only deprived Claimants of the right to exercise their seniority as provided by Rules 13(a) and 21(a) but also defeats and destroys the provisions of Rule 8(a) reading:
The above provision of agreement would become null and void as carrier could change the hours of service on a day to day basis and defeat the purpose of the rule or need for overtime.
The foregoing clearly shows that carrier violated the agreement when they established in excess of three shifts of carmen and after establishing same failed to properly abolish the jobs on which the starting time was changed and re-advertise them as new jobs, therefore, claimants are entitled to be compensated one hour at the straight time rate of pay for each day they were deprived of working the established hours of their assignment as established prior to April 14, 1962.
Likewise claimants are entitled to be compensated one hour at time and one-half rate of pay for each day they were required to work after the regular quitting hour of their assignment as established prior to April 14, 1962, as Rule 4(a) provides:
Finally, the reasons hereinbefore set forth abundantly support the sustaining of this statement of dispute and the honorable members of your division are respectfully requested to do so.
1. An agreement between the parties hereto, effective June 1, 1960, is on file with your Board, and is made a part hereof by reference.
2. Kansas City, Missouri, is an important terminal and switching point on the Missouri Pacific. Car inspectors are employed on three shifts, seven 4599-12 111
suffered any loss. The shop craft agreement between the parties to this dispute is devoid of any provision which would impose a penalty on the carrier even if the carrier had violated the agreement in the manner alleged. Although the carrier emphatically denies that the carrier violated the shop craft agreement as alleged, sustaining the monetary claim even if a violation had occurred would impose a penalty on the carrier and give the claimants a windfall, neither of which result is provided for or contemplated by the terms of the shop craft agreement, and such an award would be beyond the jurisdiction of your board.
All of the monetary claim stated in paragraph 2 of the employes' statement of claim is in the nature of a penalty and cannot be sustained in any event, but we point out that a part of the claim covering the last hour during which claimants worked requests that the claimants be paid at the time and one-half rate. The punitive rate of time and one-half applies only when the employe performs the work in excess of 8 hours in any one day or 40 hours in any one work week or on a holiday. Here none of the employes met this qualification and are not entitled to punitive pay. Your board has so held as illustrated by Award No. 1632 of the Fourth Division in which your board held:
Claimants were assigned to work 8 hours a day during their work week and were paid 8 hours at the straight time rate. If the claimants worked beyond their regularly assigned 8-hour tour of duty, they were compensated at the punitive rate for such service beyond 8 hours in any one day. The work for which the punitive rate is claimed in this dispute was performed within the claimant's regularly assigned 8-hour day, and there is no basis for a claim for the punitive rate.
For the reasons stated, the carrier is not prohibited by the shop craft agreement from changing the assigned hours of existing positions within the starting time cycle provided by Rule 2, nor is there any requirement in the shop craft agreement contrary to the contentions of the employes which requires the carrier to abolish and rebulletin the same position on which the hours of service are changed. It follows that this claim must be 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.
At Kansas City, an important terminal and switching point, the Carrier maintains a staff of Car Inspectors on a three shift, seven day a week basis.
Prior to January 6, 1961, the number of Car Inspectors assigned to the work shifts were as follows:
Effective January 6, 1961, the Carrier took 3 Car Inspectors from each of the shifts, supra, and changed their starting times to 8:00 A. M., 4:00 P. M. and 12:00 Midnight.
On April 16, 1962, the Carrier made the following additions to the Car Inspector's staff:
On May 1, 1962, the Organization filed a grievance charging the Carrier with violating Rules 2, 13, 21 and 25 of the controlling Labor Agreement by changing the Claimants' hours of assignment "without first abolishing the position and bulletining the new position."
The claim was denied on the basis "that the Shop Craft Agreement does not require the Carrier to abolish the former positions and establish new positions when changing the time to commence work within the starting time cycle for each shift as provided in Rule 2."
The Organization further alleges that the Carrier's action "improperly denied the employes the right to exercise their seniority to the position of their choice."
The Carrier contends "that the Shop Craft Agreement . . . does not require the Carrier to abolish an existing position and establish a new position when no change is made in the duties of a position or the place to go on and off duty but simply the hours of assignment are changed within the starting time cycle."
We have studied carefully Rules 2, 8, 13, 21, and 25 and it is our judgment that only Rule 2 has any pertinency to the present discussion.
Rules 8, 13, 21 and 25, which respectively deal with the "Distribution of Overtime"' "Filling Vacancies on New Positions", "Reduction of Forces", and "Seniority", are not involved in the determination of this dispute.
Turning to an analysis and evaluation of Rule 2 - which deals with work "Shifts" - we find that 2 (d) of that Rule permits the Carrier to X599-is 1.13