Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7291
SECOND DIVISION Docket No. 7122
2-SCL-EW-t77
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No. 42, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
(
( Seaboard Coast Line Railroad Company
Dispute; Claim of Employes:
1. That the Seaboard Coast Line Railroad Company violated the current
-working agreement, particularly Rule 11, when Carrier forced
Electrician D. C. Spivey to change shift and refused to pay the
overtime rate for his first shift change on September
,3,
1974.
2. That, accordingly, the Carrier be ordered to additionally compensate
Electrician D. C. Spivey four (4) hours at his straight time'rate
of pay.
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.
Claimant in this dispute alleges violation of Rule 11 in Carrier's
failure to pay the overtime rate when the Claimant changed shifts on September
3,
1974, following his displacement by a more senior employe in his regular
first shift position.
Rule 7.1, Paragraph 1 reads as follows:
"CHANGING SHIFTS
Employees changed from one shift to another will be paid
overtime rates for the first shift of each change. Employees
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 employees involved."
Form 1
Page 2
Award No. 7291
Docket No. 7122
2-sCL-EW-'77
Since the Claimant did change from "one shift to another," the remaining
question is whether the shift change came "at the request of the employees
involved" -- thus bringing into play the exception as to overtime payment
for shift change.
The Board reaffirms its stand in Award No. 7251 (Roadley), covering a
different employe in the identical situation. Claimant moved from one shift
to another in the exercise of his seniority and thus qualified the situation
as being "at his own request" and not simply at the convenience of or at the
specific direction of the Carrier.
While Award No. 7251 (Roadley) covers the same situation and is applicable
here, farther discussion perhaps is required as to the Carrier's argument
that the various changes in shift assignment took place because the Organization's
Local Chairman "requested" the posting of certain positions. This Board does
not accept this argument. The Carrier's response in meeting the issue raised
by the Local Chairman was simply to follow the terms of the Agreement between
the parties as it then saw it to be. A Local Chairman's entreaty to have
the Carrier follow certain required procedure does not excuse the Carrier from
meeting the later consequences of its contractual obligations, if therebe
any. For other reasons, however, the Board finds no violation by the Carrier
of the overtime pay provision.
A distinction may be drawn between this case and Award No. 7258, in
which the Claimant was specifically directed by the carrier to protect.a
different shift temporarily.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 29th day of April, 1977