EMPLOYES' STATEMENT OF FACTS: Carman A. Houston, hereinafter referred to as the claimant, was regularly assigned to position no. 463 at Roxana, Illinois, which worked Monday through Friday, hours 4:00 p.m. to 12:00 p.m.
On date of February 25, 1963, the Illinois Terminal Railroad Company, hereinand referred to as the carrier, posted bulletin no. F-4010, notifying that position no. 463 was discontinued effective at the end of tour of duty March 1, 1963. At the same time bulletin no. F-4011 was posted advertising new position no. 463 to work Tuesday through Saturday with hours 8:00 a.m. to 4:00 p.m., assignment to be effective March 2, 1963.
However, the claimant was notified by telephone to report for work at 8:00 a.m., February 25, 1963, and work those hours pending assigning of this job March 2, 1963, and not to work his regular hours 4:00 p.m. to 12:00 p.m. He was paid at
shift to the 8 a.m. shift and paid him at the time and one half rate in accordance with the first paragraph of Rule 13 of the effective agreement which reads as follows:
In view of the change in off days and hours of assignment on the car inspector's job at Roxana, mechanical department issued bulletin dated February 25, 1963 abolishing such job and readvertising it with the new hours of service and rest days. Claimant continued working from 8 a.m. to 4 p.m. after February 25, 1963 pending bulletining and assignment of readvertised position. Effective March 2, 1963 claimant was assigned to the readvertised position as the senior bidder.
POSITION OF CARRIER: There is in effect an agreement between Illinois Terminal Railroad Company and the mechanical department employes represented by System Federation No. 154 bearing an effective date of September 1, 1949, copies of which are on file with the board and which by reference hereto is made a part of this submission.
It is carrier's position that the only rule in the applicable agreement pertinent to this case is the first paragraph of Rule 13 which is stated above in carrier's statement of facts. Carrier changed the shift of claimant on February 25, 1963 and paid him time and one half rate for the first shift of the change which is all the rule requires.
Claimant was not changed from the 8 a.m. shift on any other dates in dispute and he is, therefore, not entitled to any additional compensation for February 25, 26, 27, 28 and March 1 as claimed by petitioner. The principals involved in this docket are no different than those contained in Seccond Division Awards No. 2789 and No. 3848. Second Division Award No. 3848 covers the same parties that are involved in the instant disputes. In both awards cited there are slightly different facts, but such differences are not so substantial as to arrive at a different decision in the instant dispute and since Carrier paid claimant time and one half rate for the first shift that he worked under the change of shift rule, the instant dispute has; no merit and claim should 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.
Claimant's assignment, 4:00 p.m. to 12:00 p.m., Monday through Friday, was cancelled on Feb. 24, 1963, and a new assignment 8:00 a.m. to 4:00 p.m. Tuesday through Saturday, was bulletined, both effective March 2nd. To accommodate the patron for whose convenience the changes were made, the Carrier, instead of having Claimant work his usual shift on Monday, Feb. 25th, called an extra switch engine to perform during the newly bulletined hours the work in connection with which Claimant would have served; and it transferred him to the new hours as of Tuesday,
Feb. 26, and continued him there through Saturday, March 2nd, whereupon, pursuant to his bid, he was given the new assignment. In acccordance with Rule 13 he was paid the overtime rate for Feb. 26th, his first shift after the transfer.
The Claims are: (A) for overtime rates for each of the four days of his old assignment, namely, Tuesday, Feb. 26th, through Friday, March 1st, on which he worked the new hours pending bulletin; and (B) in addition, for pay at regular rate for each of the five days, Monday, Feb. 25th, through Friday, March 1st, on which he did not work his old shift.
Rules 13 under which as noted, Claimant was paid the overtime rate for Tuesday, Feb. 26th, so far as here relevant reads as follows:
As to Rule 6(a) Rule 13 was a rule "hereinafter set out" and even if not thus specifically excepted, it would, as a special rule, prevail over the general provision of Rule 6 (a). For both reasons its provision for the overtime rate for only the first shift must prevail over Rule 6 (a)'s provision of the overtime rate for all, service performed until relieved.
Having been paid all overtime to which Claimant was entitled under Rule 13, i.e., for his first shift of the change, Claim (A) must be denied.
Claim (B), for pay at regular rate for the five days on which he did not work his old shift, is based upon the first paragraph of Rule 11, which reads as follows:
Rule 11 cannot be considered applicable to Monday, Feb. 25th, upon which Claimant did not work outside of his regularly assigned hours, and there was not overtime to be equalized. As further pointed out by the Employes, this Division held in Award 4477 that the forty hour work week rule together with the bulletining rule "give support to the Claimant's position that the last day of his work week was improperly taken away from him by the Carrier." However a Note to Rule 1 of this Agreement provides that the terms "positions" and "work" refer to "service, duties of operations necessary to be performed the specified number of days per week, and not to the work week of individual employes;" and Rule 1 (a) 2 provides:
Since the record contains no showing of any prior guarantee, the cited holding of Award 4477 cannot be followed here. It is true, also, that instead of working one Monday, the first day of his old assignment, Claimant worked on Saturday, the last day of the position to which he was transferred so that he did not lose a day.