Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7272
SECOND DIVISION Docket No. 7132
2-CRR-MA-'77
The Second Division consisted of the regular members and in
addition Referee Nicholas H. Zumas when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute:
( Clinchfield Railroad Company
Dispute: Claim of Employes:
1. That under the terms of the Controlling Agreement, the Clinchfield
Railroad Company failed to compensate Machinist L. W. Briggs for
changing shifts February
18,
1975, as provided in Rule
8
of the
Agreement.
2. That accordingly the Clinchfield Railroad Company be ordered to
additionally compensate Machinist L. W. Briggs in the amount of
four (4) hours pay at the straight time rate of pay for this change
of shifts occuring on February 18, 1975.
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 waived right of appearance at hearing thereon.
This is a claim for compensation under the provisions of Rule
8
of the
Agreement between the parties which state:
"Employes changed from one shift to another will be paid
overtime rates for the first shift of each change. Employes
working two shifts or more on a new shift shall be considered
transferred. This will not apply when shifts are exchanged
at the request of the employes involved.
If it becomes necessary to create a relief job in which the
assigned relief man is compelled to perform work on different
shifts in order to have five (5) work days included in his
assignments such employe will not be paid overtime rates
for changing shifts to perform the work on the shifts included
in his assignment. If such employe is required to change shifts
for any other reason, this exception shall not apply to such
other shift changes."
Form 1 Award No. 7272
Page 2 Docket No. 7132
2-CRR-MA-177
The essential facts are not in dispute. Prior to February
18,
1975,
the claim date, Claimant was assigned to the first shift position at
Carrier's shop facilities at Erwin, Tennessee. As a result of force adjustments by Carrier, Claimant was "bumped" from his first shift assignment by
a senior employe whose position had been abolished. Claimant was the junior
machinist in service, and a relief position working the second and third
shifts was the only remaining unassigned position. The unassigned position
was advertised but no bids had been received. Claimant was assigned to the
position by reason of his seniority. He now makes claim for the payment of
time and one-half fox the first shift worked on the new position.
The precise question to be determined in this dispute is this:
When Claimant is displaced from his first trick position
because of force reduction, and refuses to bid on a secondthird trick relief assignment, can Carrier assign Claimant
to the relief assignment without penalty under Rule
8?
The Organization takes the position that the claim should be allowed
because Claimant was displaced through no fault of his own and was subsequently
forced to accept the relief position by Carrier when he did not bid the
assignment. Under Rule
8,
the Organization argues, there are only two
exceptions fox the non-payment of the penalty: 1) a shift change at the
request of the employe, and 2) making up relief assignments. The Organization
further argues that the awards relied on by Carrier involve rules that are
broader in their scope and include a third exception, vii. no penalty where
the employe changes shifts in the exercise of his seniority. The Organization
also cites a number of awards supporting its position.
Carrier asserts that the awards relied upon by the Organization were
early awards, and that the more recent awards support its position. Carrier
farther asserts that when Claimant was displaced he was not an employe assigned
to the first trick shift any longer; and when he refused to bid on the relief
assignment position, Carrier had no alternative but to assign hire the relief
position because of seniority.
The Board is of the opinion that even though, as the Organization
contends, there are no specific exceptions enumerated in the rule, the
purpose of the rule was to penalize the Carrier when it made a shift change for its
own convenience. Moreover, Claimant, as the senior employe, had an obligation
to bid on the assignment. He had no right, under the rule, to lay back,
refuse to bid the job, and then claim that he was entitled to penalty pay
as a shift change when he accepted the assignment.
In Second Division Award No.
4630,
the Board said:
"The Division must now turn to the second issue to determine
whether Rule 9(a) which states in part:
'Employes changed from one shift to another will be
paid overtime rates for the first shift of each
change...'
Form 1 Award No.
7272
Page
3
Docket No.
7132
2-CRR-MA-'77
"is applicable to the Claimant when his shifts were changed in
the course of holding jobs during the pendency of the bid
period. The Division, after due consideration of the record,
is unable to accept the Organization=s contention that,
because the language of the Rule is all-embracing and contains
no words of limitation or exclusion, it must apply to the
circumstances in which the Claimant found himself. The
reason why the Division cannot accept the sweeping and
literal interpretation contended for by the
Organization, is
that the Rule in question has wide currency in railroad
contracts, and over the years has been the subject of many
interpretations. The vast majority of awards rendered both
by this Division, and other Divisions of the National
Railroad Adjustment Board, have held clearly and unequivocally
that the rationale and purpose of the Rule was to cover those
situations where the Carrier moved a regularly assigned employe
to another shift for its convenience, and thus had to pay
the employe the premium rate for the inconvenience it caused
him. This rationale was recognized and stated in the Dissent
of the Labor Members in Awards
4277
and
4278.
There axe also
comparable statements in many awards of this Division, too
numerous to cite."
And in Second Division Award No.
1816,
the Board denied the claim,
finding:
"Prior to January
9, 1953,
carrier had
82
Carmen and Carmen
Helpers working in the Erecting Shops at Marshall, Texas.
These men had been assigned by bulletin to a work program
of building
250
new gondola cars. On January
9, 1953,
these
jobs were abolished and the employes directed to place themselves in line with seniority. On January
5, 1953,
the
carrier bulletined
80
new positions at Marshall. Some of
the employes whose positions had been abolished bid on and
were assigned to new positions. Claimants are
24
Carmen and
8
Carmen Helpers who did not bid on these new positions or
exercise their seniority thereto, but were subsequently
assigned by the carrier. The organization contends that
claimants are entitled to overtime rates for the first shim
of their new positions under Rule
2
(m), current agreement,
which provides in part:
tAn employe changed from one shift to another
will be paid overtime rates for the first
shift of each change. An employe working
two shifts or more on a new shift shall be
considered transferred. This will not apply
when shifts are exchanged at the request of
the employe involved, or in the exercise of
his seniority.'
Form 1
Page 4
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
Award No. 7272
Docket No. 7132
2-CRR-MA-177
"We point out that the change in shift rule does not apply in
this case. There was no change of shifts within the meaning
of the rule. The positions of these claimants in the erecting
shops were abolished. There were no shifts on the abolished
positions remaining to which a change could be made. New
positions were bulletined upon which claimants could bid. If
they had a choice of positions, they should have bid. Upon
failure to bid, carrier could assign them to unfilled positions
in accordance with their seniority which the carrier did. They
assumed the shift to which they voluntarily permitted themselves
to be assigned--they did not change from one shift to another
within the meaning of the first sentence of Rule 2(m). They
were changed to a new shift on a new position to which they
were entitled by seniority. Claimants cannot profit in such
a situation as we have here by the expedient of failing to
bid on new positions and accepting that to which their
seniority entitles them. Award
1546."
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
qBy
r
semarie Brasch -Administrative Assistant
Dated at Chicago, Illinois, this 5th day of April,
1977.