The Second Division consisted of the regular members and in
addition Referee Harold M. Weston when award was rendered.
SYSTEM FEDERATION NO. 41, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
THE CHESAPEAKE AND OHIO RAILWAY COMPANY
(Southern Region)
EMPLOYES' STATEMENT OF FACTS: Carman J. E. Christian, hereinafter referred to as the claimant, is employed as such, by the Chesapeake and Ohio Railway Company, hereinafter referred to as the carrier, in its yards at Russell, Kentucky as a car inspector on the second shift, with a work week Thursday through Monday, rest days Tuesday and Wednesday. The carrier's Russell Yards is a large yard where trains are made up, switched and cars are repaired.
On September 3, 1964 Carman W. T. Sammons was first out on the overtime board, was called and refused said call. Carman H. Vanderhoof Sr., was second out and could not be reached by telephone. Carman H. Gambill third out, called and accepted, leaving the claimant first out.
On September 4, 1964 it was necessary to call one man from the carmen's overtime aboard and the claimant who was first out, his name was ignored. Carman Sammons was called again for the first shift in violation of rule 11 of the shop crafts agreement. This was called to the attention of the carrier's General Car Foreman, Perkins and he agreed to take corrective measures but failed to do so. After calling to the attention of the
of overtime worked by the individual employes, and that the employe who is low in hours at one time will be high at another. Obviously Christian has not been denied overtime earnings as a result of using Sammons to work overtime on September 4, 1964. Carrier does not know which of these employes has more overtime hours charged to them in the aggregate, but assumes that the local committee is taking proper action to adjust the overtime board for the purpose of seeing that the overtime is distributed as equally as possible.
Without prejudice to the above position, it should be noted that the claim is excessive in that payment at time and one-half rate is requested. Under the doctrine repeatedly set forth by the board, payment for service not performed is allowed only at straight time rate. Thus, even if the employes' contention were valid, which it is not, Christian would not be due the amount claimed.
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 basis issue is whether or not Carrier violated Rule 11 of the applicable agreement when it used W. T. Sammons rather than Claimant, who was first-out at the time, for overtime work on the first shift on September 4, 1964 at Russell, Kentucky. Both employes are regularly assigned Carmen carried on the same seniority roster and overtime board. Sammons had been called for overtime work on the 11:00 P. M. shift on September 3, 1964, when he was first out, but had refused that work. Petitioner maintains that favoritism is being shown in giving Sammons daylight overtime.
The many awards that have considered Rule 11 quite consistently hold that it does not restrict overtime distribution to a first-in first-out basis or any precise formula but is properly observed if the work is distributed substantially equally over a reasonable period of time. See Awards 2035, 2040, 2123 and 4980.
While the fact that Claimant was first out at the time that the disputed work was given Sammons may be some evidence of favoritism, it is not sufficient in and of itself to substantiate a contention of unfair discrimination. The burden of proof in that regard rests with Petitioner and the record does not establish that over a reasonable period of time, Claimant has not received a fair share of overtime, including daytime work. The claim accordingly will be denied.
The remedy of an employe, who believes that he is being unjustly treated with respect to overtime distribution, is to bring a claim based on a reasonable period of time rather than on an isolated incident.