The Second Division consisted of the regular members and in
addition Referee Don J. Harr when award was rendered.
SOUTH BUFFALO JOINT PROTECTIVE BOARD,
AFL-CIO (Carmen)
EMPLOYES' STATEMENT OF FACTS: Carman Robert Murray, hereinafter referred to as the Claimant, owns a regular assigned relief position, by bid, at the South Buffalo Railway Company, hereinafter referred to as the Carrier, as a Carman in the South Buffalo Yard, Buffalo, New York with work week and hours of service respectfully, as follows; Sunday, Monday and Tuesday - 7:30 A. M. to 3:30 P. M., Wednesday - 7:00 A. M. to 3:00 P. M., Thursday and Friday - rest days, Saturday - 2:30 P. M. to 10:30 P. M.
The Claimant was not scheduled or assigned to work on his rest day, Thursday, Thanksgiving Day, November 27, 1969. The Carrier called the Claimant on his rest day, Thursday, Thanksgiving Day, November 27, 1969 for emergency wrecking service from 12:00 noon to 4:00 P. M. and for this emergency work performed, Claimant was paid, according to Management, four hours at double time and one-quarter and four hours at straight time.
The Claimant was damaged for one hour's pay at pro-rata rate of pay by the Carrier's action by not paying him under the (emergency) Overtime Rule of the Current Agreement.
This dispute has been handled with all Carrier Officers designated to handle such disputes, including the highest officer, all of whom have declined to make satisfactory adjustment. The correspondence exchanged by the parties
The claim is contrary to the language of the Rules, and contrary to the practice under those Rules since their inception. The Carrier therefore submits that this claim should be denied by the Board.
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 held a regular assigned relief position as a Carman in Carrier's South Buffalo Yard, Buffalo, New York. The Claimant was not scheduled to work on his rest day, Thursday, November 27, 1969. This was also the Thanksgiving Day Holiday.
The Claimant was called by Carrier at 12:00 Noon on November 27, 1969 to work with a wrecking crew to rerail a submarine-type ladle car at Bethlehem's blast furnace plant. This emergency work was completed at 4:00 P. M. For the time worked Claimant was paid a total of thirteen hours pay-
The Organization contends that the Claimant was deprived of one hour's pay at pro-rata rate of pay by the Carrier's failure to pay him under the Overtime Rule of the effective Agreement.
The Carrier points out that Rule 8-Overtime follows the pattern for holiday pay in the steel industry rather than the railroad industry. They further rely upon past practice upon this property. The Carrier states that this practice has been followed in similar instances for a period of fifteen years and acquiesced to by the Organization.
(b) For all time worked on a holiday as defined in the Holiday Rule, an employe shall be paid at the rate of two and one-fourth times his straight time rate of pay."
During the handling on the property the Carrier relied upon the fact that the Claimant was a regular member of the wrecking crew called and did not have the option to accept or refuse the work assignment. The Carrier placed considerable emphasis upon the language "scheduled to work" included in Rule 9.
We do not believe that the Claimant was scheduled to work on the, date in question but was called out for emergency work. Sections (a) and (g) of Rule 8 should be applied.
In it's presentation to the Board the Carrier relied upon and cited Awards of this Division where past practice was relied upon. We do not believe that past practice can be used to defeat the clear language of a negotiated Rule.