Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6836
SECOND DIVISION Docket No. 6705
2-MP-CM-'75
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
( System Federation No. 2, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated Rule
8
of the controlling agreement and Article V of the Agreement
of April 24, 1970, when they arbitrarily denied Carman A.
Zatopek his right to overtime on his second rest day,
February 12, 1973.
2. That accordingly, the Missouri Pacific Railroad Company, be
ordered to compensate Carman Zatopek in the amount of eight
hours
(8')
at double time rate for February 12, 1973, and in
addition to the money amounts claimed herein, Carman Zatopek
shall be paid an additional amount of
6°%
per annum compounded
annually on the anniversary date of the claim.
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.
Parties to said dispute were given due notice of hearing thereon.
The facts out of which this claim arose are not in dispute. Claimant
is employed as a first trick Car Inspector in Carrier's Settegast Yard,
Houston, Texas with work week of Tuesday through Saturday and rest days
of Sunday and Monday. On Sunday, February 11, 1973 Claimant was called
as first out on the train yard overtime board, performed service and
was paid the time and one-half rate for working on his regularly assigned
rest day. On Monday, February 13, 1973 claimant was again listed as
first out on the train yard overtime board and stood to be paid double
time under Article V of the April 24, 1970 Agreement, if he performed
service on that day, the second rest day of his assignment. The record
Form 1 Award No.
06836
Page 2 Docket No. 6705
2-MP-CM-t75
shows that the Train Yard Foreman on Monday February 12,
1973
went to
the train yard overtime board for a car inspector but passed over
claimant, notwithstanding his first-out status, in order to avoid
paying claimant double time. The foreman thereupon called all other
employees on the train yard overtime board and none of these employees
accepted the call. Thereupon, without calling Claimant, the Train Yard
Foreman moved to another overtime board maintained for repair track and
called an employee from that board who performed the service on Monday,
February 12,
1973.
On the basis of the foregoing, the claimant asserts
a violation of Rule 8(b) of the controlling agreement and Article V
of the Agreement of April 24,
1970.
The cited agreements read in pertinent part as follows:
_ "(b) Record will be kept of overtime worked and
men called with the purpose in view of
distributing the overtime equally."
"ARTICLE V - OVERTIME RATE OF PAY
All agreements, rules, interpretations and practices,
however established, are amended to provide that
service performed by a 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 all the hours of his
assignment in that work week and has worked on the
first rest day of his work week, except that emergency
work paid for under the call- rules will not be
counted as qualifying service under this rule, nor will
it be paid for under the provisions hereof.
The foregoing provision is effective April 24,
1970."
It is noted that the cited Rule 8(b) does not by express language
establish a procedure for distribution of overtime. The record indicates
and the parties stipulated in our hearing, that various procedures have by
mutual agreement and practice become accepted at the several locations -to
which the agreement applies. Specifically, at Settegast Yard, since
1951
to the present, separate overtime boards are maintained for train yard and
repair track employees. By mutual agreement these overtime boards are
managed by the local committee and the man with the least amount of
overtime hours is listed as first out for calls by Carrier. The record
further shows that by long and established practice employees for train
yard overtime are called from the train yard overtime board and for
repair track overtime are called from the repair track overtime board.
Form 1
Page 3
Award No .6836
Docket No. 6705
2-MP-CM-t75
Under this mutually accepted procedure, the repair track overtime board is
used to call employees for train yard overtime only after the train yard.
board is exhausted.
Carrier denies the alleged violation primarily upon the ground that it
has a managerial prerogative to affect cost reduction and efficiency by
assigning forces in the most economical manner. Moreover Carrier
correctly observes that absolute equalization of overtime is not contemplated
by the parties, nor does the express language of Rule 8(b) require a FIFO
distribution of overtime in a particular instance. Notwithstanding the
validity of the foregoing general propositions, however, we conclude that
Carrier's reliance thereon in denying the instant claim is erroneous.
It cannot be gainsaid the Carrier has a general prerogative to schedule
work and allocate forces in the interest of efficiency and economy. But,
this right may be limited by Agreement rules, including long established',,
mutually accepted and consistent practice adopted pursuant to such rules.
It is well established on this record that past practice of over 20 years
standing required Carrier to exhaust the train yard overtime board before
calling from the repair track board for train yard work. The uncontroverted
record shows that the foreman called every employee on the train. yard
board ex_ce, t claimant and then, without calling claimant, turned to the
repair track board and called an employee therefrom to perform train yard
work. (Emphasis added) We hold that the foreman did not exhaust the
train yard board before calling from the repair track board and,
accordingly, violated the mutually accepted practice developed by the
parties at Settegast Yard pursuant to Rule 8(b).
We shall sustain the claim to the extent of eight (8) hours at the
applicable straight time rate. We are not persuaded on this record to
depart from our practice of allowing compensation for work not performed
only at straight rates; nor do we find herein adequate support for the
claim of interest at 6 per cent per annum.
A W A R D
Claim sustained to the extent indicated in the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
osemarie Brasch - Administrative Assistant
Dated at Chicano, Illinois, this 18th day of March, 1975.