Fore 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7532
SECOND DIVISION Docket No.
7429
2-SCL-Ew-'78
The Second Division consisted of the regular members and in
addition Referee Theodore Ii. O'Brien 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 M. F. Williams to change shift and refused to pay the
overtime rate for his first shift change on August
9, 1975.
2. That, accordingly, the Carrier b e ordered to additionally compensate
Electrician M. F. Williams four (4) hours at his pro rata 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.
On August 1, 1975, Carrier posted bulletins No. 125 and No. 126 listing
two assignments which would be cut off in the Hamlet Diesel Shop effective
the close of shift on August
8,
1975. After bulletin No. 126 was posted,
Claimant was displaced. from his second shift assignment by a senior employe.
However, Claimant elected to continue working by displacing another employe
on the third shift. The Organization charges that the Carrier violated Rule
11 of the current working Agreement when they allegedly forced Claimant to
change shifts without payment of the overtime rate for his first shift change
on August
9, 1975.
Rule 11 reads, in pertinent part, as follows:
"Employes changed from one shift to another will be paid
overtime rate 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 Award No.
7532
Page
2
Docket No.
7429
2-SCZ-EW-'78
The issue before us is whether Claimant is entitled to the overtime provided
in Rule 11 when he changed shifts through the exercise of seniority.
It is the Carrier's position that Rule 11 does not apply in cases where
an employe exercises seniority, since this constitutes a voluntary move. The
Carrier also contends that the intent of Rule 11 is to preclude Carrier from
indiscriminately moving employes from one shift to another for its own
convenience.
The Organization counters that the first paragraph of Rule Il was
intended to provide additional compensation for an employee because of the
inconvenience resulting from a change in shifts, if such change is caused
by reasons beyond his control. It is the contention of the Organization that
the Claimant's change in shifts was caused by the Carrier's abolishment of
two
(2)
Electrical Workers' positions at the Hamlet Diesel Shop, and thus
the Claimant did not change shifts of his own free will, but was forced to
do so by the Carrier's actions.
Numerous prior Awards of this Division have dealt with claims that were
essentially similar to the instant claim and with Rules that were identical
to Rule 11 of the controlling Agreement in the instant claim. Many of these
prior Awards have held that the overtime rate does not apply when employees are
exercising seniority or changing shifts for their own benefit. Second
Division Award No.
7251
(Roadley), which involved the same parties as the
instant dispute, denied a claim which was essentially similar to the one
before us. In Award No.
7251,
the Board stated, in pertinent part:
"It is the view of the Board in this case that it was
Claimant's exercise of his seniority that resulted in
the change in his shift, and not a change in shift that
necessitated his exercising his seniority ....
We do not find that the Claimant's change in shift
assignment was the result of indiscriminate action by
Carrier or that the Agreement was violated."
A careful examination of the record before us evidences that the
preponderance of prior Awards concerning
changing shifts
have held that when
positions are abolished, the resultant exercise of seniority does not
constitute a transfer at the direction of Management, but is simply an
exercise of seniority. We find those Awards persuasive, and suscribe to
the reasoning thereof. Accordingly, we shall deny the claim. (See Awards
of the Second Division Nos.
7251, 2224, 5029, 5409, 5507, 4549).
A W A R D
Claim denied.
Form 1
Page
3
Award No.
7532
Docket No.
7429
2-SCZ-Ew-·78
NATIONAL RAILROAD ADJUSTNLNT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
R semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 9th day of May,
1978.