The ,Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.
SYSTEM FEDERATION NO. 41, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Carmen)
THE CHESAPEAKE AND OHIO RAILWAY COMPANY
(Southern Region)
DISPUTE: CLAIM OF EMPLOYES: 1. That the Chesapeake & Ohio Railway Company violated the current agreement, particularly Rule 13, when they denied Carman Painter E. E. Wilcox time and one-half rate for change of shifts, Sept. 24, 1962, Huntington Shop, Huntington, West Virginia.
2. That accordingly the Chesapeake & Ohio Railway Company be ordered to additionally compensate Passenger Carman Painter E. E. Wilcox four (4) hours September 24, 1962, at the Passenger Carman Painter applicable straight time rate of pay.
EMPLOYES' STATEMENT OF FACTS: The Chesapeake & Ohio Railway Company, hereinafter referred to as the carrier, employes a number of carmen painters at Huntington Shops, Huntington, W. Va., which includes E. E. Wilcox, hereinafter referred to as the claimant, who holds carman painter seniority at Huntington Shop under the provisions of Rule 31 of the controlling shop crafts agreement. Claimant Wilcox was furloughed from Huntington Shop, Huntington, W. Va., some time prior to September 11, 1962. On September 12, 1962, a bulletin was issued recalling claimant for service effective at starting time 7:00 A. M., Tuesday, September 11, 1962. Claimant reported for work and was assigned to the first shift 7:00 A. M. to 3:30 P. M., with duties of painting station wagons; working said position to September 24, 1962. On September 14, 1962, the first shift assignment to which claimant was assigned, was bulletined. On September 24, 1962, addendum to the bulletin of September 14, 1962, was issued, awarding the first shift assignment being worked by claimant, to K. P. Lester, senior painter to Claimant Wilcox.
On September 21, 1962, claimant was instructed by Supervisor Mr. Seivers, paint foreman, to report at the operating headquarters building starting September 24, 1962, with hours of assignment 5:30 P. M. to 2:00 A. M. shift. Claimant was denied the time and one-half rate for changing shifts September 24, 1962.
Thus by specific agreement the only employes entitled to the punitive rate are "employes changed at the instance of the company". In other words, the punitive rate is applicable only when the company has unilaterally changed the employe to another shift.
Here the change was not unilateral, but was strictly pursuant to, and required by the Rules. Claimant's first temporary assignment pending bulletin was terminated by permanent assignment of the position pursuant to bid. Under the Rules the second temporary vacancy pending bid was mandatorily assigned by the Carrier to Claimant as the junior active employe, and mandatorily accepted by him to protect his seniority. That action being strictly required by the Rules, the Carrier cannot be punished for taking it.
Since the facts do not bring this claim within Rule 13 it is unnecessary to examine the various arguments advanced and awards cited by the parties interpreting and applying that rule.
There is no disagreement between the parties to this dispute that claimant was assigned to the first shift 7 A. M. to 3:30 P. M., September 11, 1962, and worked thereon until assigned to another shift September 24, 1962, 5:30 P. M. to 2 A. M. The employe was in continuous service and this change in shifts was ordered by the supervisor in charge and was not by exercise of claimant's seniority. Thus, since the Understanding negotiated Feb. 9-22, 1922 states that employes changed at the instance of the company must be paid at overtime rate, the present claim should have been sustained.