C:\AWARDS\OUT\2-06359.htm

(Advance copy. The usual printed copies will be sent later.)

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6359 SECOND DIVISION Docket No. 6150 2-IT-CM-'72 The Second Division consisted of the regular members and in addition Referee Irving ( System Federation No. 154, Railway Employes' Department, A. F: of L. - C. I. 0. Parties to Dispute: ( (Carmen)

( Illinois Terminal Railroad Company

Dispute: Claim of Employes:

1. That under the current agreement the Carrier improperly assigned regular Carman Roy Yages to assist Painters in performing their work on November 18 and 19, 1970.

2. That accordingly, the Carrier be ordered --:o additionally compensate Painter P. L. Nolan in the amount o f e i.gh .-- (8) hours at the time and one-half rate for November 18th, and four (4) hours at the time and one-half rate for November l9th, 1970.

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 tl,,e meaning of the Railway Labor Act as approved June 21, 1934. This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of app*Arance a t hearing thereon.

The claimant was regularly Employed as a painter and was on the seniority roster under the heading of, PAINTERS. On November 1F and 19, 1970, a carnan who was not regularly employed as a painter was assigned to assist the painters by . , preparing the surfaces of a caboose for painting; on November 18, 8 hours were worked and on November 19, 4 hours were worked. Exhibit i3 of employe's submission does not list painter helpers on the seniority roster, and the carman assigned to assist the painters appears on the roster for SET-UP CARMEN. Rule 31, of the Agreement establishes the seniority of employees by crafts in the district under consideration. In so do-7.ng Rule 31 subdivides the Carmen seniority so that Painters appear as a separate heading. Rule 124 of the agreement refers specifically to the work of painters. Rule 126 of the Agreement relied upon by the Carrier refers to the use of ca rmeT) helpers..

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Form 1 Page 2 Award No. 6359 Docket No. 6150 2-IT-CM-172 ._rr The carman assigned to assist the painters was not a carman helper. The claimant was available to perform the work. Upon reading Rule 31, Rule 124, Rule 126 and the Seniority Roster together, it is clear that the work in question belonged to the painters or possibly to a painter's helper but not to a carman on a separate or different roster... Second Division Award 1269 is an emphatic precedent in stating that ,`~Work embraced within the scope of. an agreement cannot be removed therefrom and assigned to employees not'subject to its terms.---even---if it becomes necessary for the carrier to call employees subject to the terms of the agreement and working them on an overtime basis." The axiom that contracts must be adhered to is expressed in Second Division Awards 1516, 3406, 3128, 4679 and others. However, as stated in-Award 3128, and Second Division Award 2956, it is 'firmly~established~that the pro rata rate is the proper rate of compensation for work not performed; the overtime rate is applicable only to time actually worked, the pro rata rate is the measure of value of work lost. . . A WA R D Claim is sustained at the pro rata rate. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division Attest. Zia 1. Executive.Secretary Dated a t Chicago, Illinois, this 14th day of July, 1972.