The Second Division consisted of the regular members and in
addition Referee John J. McGovern when award was rendered.
SYSTEM FEDERATION N0. 91, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. 0. (Machinists)
EMPLOYES' STATEMENT OF FACTS: The Carrier's seconcx largest diesel shop is located at Nashville, Tennessee, in a section of the city known as Radnor. At this facility, diesel locomotives are repaired, maintained, inspected and serviced seven days a week, twenty-four hours a day. There are seventy-two machinists and machinist apprentices regularly employed there.
The hours of 1st shift are 7:00 A. M. to 3:00 P. M. The hours of 2nd shift are 3:00 P. M. to 11:00 P. M. and the hours of 3rd shift are 11:00 P. M. to 7:00 A. M.
The period of time involved in this dispute is February, March, April and May of 1970. During this period of time the Claimants were called to work, from the overtime board, on the dates and shifts as indicated in (a) Dispute; Claim of Employes- Claimants responded and rendered service at those times, having previously worked their regular assignments and their first rest days. Thus when working on the dates and shifts (previously identified) they were working on their second rest day.
The Carrier compensated them at the penalty rate of time and one half. However, inasmuch as they were working on their second rest day, on work other than emergency work, and, being otherwise qualified, they should have been paid the double time rate as provided by the Agreement.
This statement is emphasically denied by the carrier. If additional jobs were needed carrier would certainly establish such positions to eliminate the necessity for excessive overtime work.
The employes' bare statement that identical work is performed on overtime "day in and day out", it not in any way supported by the facts as the amount of overtime worked is very small considering the size of the work force at Radnor Shops.
The answer to each question is "Yes", and in view of the fact that the employes have failed to show any tangible proof otherwise, the claims are without merit and should be denied.
A11 matters referred to herein have been presented in substance by the carrier to representatives of the employes, either in conference or correspondence.
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.
Claimants in this case had worked all the hours of the regular weekly assignment, had worked their first rest day and their second rest day, compensation for the latter second rest day being the subject of this dispute. Carrier compensated them for that day's work at the rate of time and a half, whereas claimants are demanding double time under the provisions of Public Law 91-220 enacted by Congress and signed by the President on April 9, 1970, the pertinent provisions of which are as follows:
The Organization contends that all claimants qualify under the above provisions, that there were no emergencies involved and that claimants were generally doing the type of work which would normally be performed by them during their regular work assignment.
The Carrier maintains that these instances of work performed on the second rest day, were of an emergent nature and consequently for compensation purposes, came within the purview of the standard Call Rule. Under that rule all claimants were compensated for work performed at the time and a half rate.
We have examined the record before us and find Carrier's argument to the effect that this work constituted emergency work to be non persuasive. Carrier in the shifting burden of proof doctrine, had the obligation to show by substantial evidence that the work was emergent in nature. We find no such proof in this record. To the contrary, we agree with the Organization that the work was the type of work performed by claimants in their regular assignments. There may have been and indeed we are convinced that there may have been great pressure and a well-founded need for these men to have worked on their second rest day, but this falls far short of an emergency.
There appears to be mutual agreement by both litigating parties that the dates on which work was performed are correct, except for Claimant Western on March 19th. We will sustain all other claims as presented, and will sustain Claimant Western's claim for March 19th if that date can be satisfactorily verified at the local level insofar as Carrier is concerned.