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

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6406
SECOND DIVISION Docket No. 6215
2-N&W-EW-'72
The Second Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
( System Federation No. 16, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute:, ( (Electrical Workers)

( Norfolk and Western Railway Company

Dispute: Claim of Employes:

1. The Norfolk and Western Railway Company violated Public Law 91-226 enacted into law on April 9, 1970 when it failed to compensate Electrician R. Wilson of the Bellevue Shops Bellevue, Ohio at the double time rate for working his second consecutive rest day.

2. That accordingly, the Nnrfolk and Western Railway Company be ordered to compensate Electrician R. Wilson an additional four hours electrician's rate of pay, plus 6°o interest from date of violation.

Fngings:

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..

Parties to said dispute waived. right of appearance at hearing thereon.

Claimant worked his regularly assigned hours for five successive days, Friday to Tuesday, from 11 P.M. to 7 A.M.: he then "doubled" through by working frc-a 7 A,.M. to 3 P.M. en the fifth day. He wits called in to work from 11 P.M. Thursday night to 7 A.M. Friday, for which_he was_paid one and one_half_ times _his___ _. __ _____ regular rate of pay. His two rest days were Wednesday and Thursday.

The Organization contends that Claimant worked on both of his rest days and hence was entitled to doable time for the assignment on the second. rest day. The Organization relies on Attachment #3 of niblic Law 91-226 which states:

"All agreements, rules, interpretations, and practices, however established, are amended. to provide that service performed by a

Award No. 6406
Docket No. 6215
2 -N&W-EW-' 72 ,

Form 1 page 2

regularly assigned hourly or daily rated employee on the second rest day of his assignment shall be paid at double the basic straight time rate provided he has worked a.ll the hour of, his:. assignment in that work week, and has worked on the first rent-. day of his work week, except that emergency won?.c paid for under the call rules will not be counted a. s gAialifying service under this rule, nor will it be paid for under the provisions hereof."

The issue herein is whether Claimant met' the tests specified specified1ir Public Law`
91-226 cited above: did he work all the hours of his assignment in the work week and
did he work on the first rest day of his work week. The matter in dispute is whether

the work which began at 7 A.M. on Wednesday was part of the first rest day.

Petitioner urges that C7nimant vorked on all seven caler_dar days and. hence fulfilled the. qualification of working the first rest. day as required in lt'iIblib" Law 91-226. The Carrier denies that Claimant worked nn his first rest d1y,_a.nd clnirns that the tour~of duty involved was in reality a part of the red?a.r fifth day of work.

This Board finds that the definition of the work day has -long- been held in this industry to ba the .twerty-fc:,.zr hour period beginning, with the starting ti~.e of the ermplayee's regular shift.. . 2ha interpretation is recognized in the current Agreement in the final paragraph of 13-ale 6 which states:

' :,

"Except as otherwise prov5ded for in this rule, all overtime
Y%:ycnd 16 hours' service :in any A hour period, co^puted from

...^,t~art,zng time of employes' regular shift, shall .be paid for at a rate of double time."

It . is repeated as well in Rule 10 (d) of the Agreement. , It follows as well that the rest dr,-.- ^~:~s': have a definition consistent with the work day. Iri Second Division ~' w:::c;~ No. 1'+85 we said: "...a day is the twenty-four no= p-.ricdV im-:^.edistely fo?lo·.~:inthn startintime of t?·.e daily assignment". (Also see among mi;ty_a~-rards, Second Division No. 1564, 6375; Third Division No. Q839,.13~'-~2; Foorth DivisionI:O . 7 37 ) . We f ind therefore that the work beginning at 7 A.M.., on :Jcdnesr'a.y was ::cr?Z performed on the fifth day of work.

In its snbmission the Carrier requests that this Board. authorize the.de?ucticn of ten doss pay from Claimant as partial compensation for the costs of "grocQssirg a tnta.lly t;:?i';,ur~c'ed claim". Penalizing an employee retrospectively, for fili:g a ci:?in later fo·?..:1 to be without nerit, would radically ehenge not , only the grie<«nce process b:st the relationship between the parties. This request rr1;st be c?enied a;: contrary to the Agree?'ient as well as the law.

A W A R D

Claim denied.

r

Attest:

Executive Secretary

Dated at Chicago, Illinois, this 21st day of November, 1972.

NATIONAL RA?URUIP, A7J'!;STMEi4T BOARD By Order of Second Division