C:\AWARDS\OUT\2-07989.htm

Form 1 Parties to Dispute: Dis.rxte: Claim of FindirE;s NATIONAL RAILROAD ADJUSTNETM BOARD Award No. 7989 SECOND DIVISION Docket No. 7896
2-MP-EW-t79 The Second Division consisted of the regular members and in addition Referee Herbert Z. Marx, Jr. when award was rendered. System Federation No. 2, Railway Employes' Department, A, F. of Z. - C. I. 0. (Electrical Workers) hrissouri Pacific Railroad Company

1. That the

M1SSOU,.r1.

Pacific Railroad Company violated Rules 26 (a) and

of the June 1, 1960 controlling agreement when they allowed Mr. B. G. Wells to work as an electrician on December 11, 16,

179 23s 30

and

31,

1]76 while filling an Electrical Foreman's posit--l-on with rest days Thursday and Friday connnmcing

December ll, 1976

through December

31, 1976

inclusive at North Little Roe,.-,, Arkansas.

That, accordingly, the Myssouri Pacific Railroad Company be ordered to compensate Electricians J. 0, Neely, E. S. Collins, H. A. Idoxris, P. C. Cross, h. N. Spinelli and C. P. Davis., Jr. eight hours (8') pay at the overt7.me rate for Deceriuex 11, 16, 17, ?_3, 30 and 31, 1976, the days Electrical Foreman Wells worked as an electrician. 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, 193.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

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

The Carrier had vacant the position of Foreman. Pending the permanent filling of the vacancy, Electrician B. G. Wells was utilized to fill the vacancy temporarily from Saturday, December 71, 176 until his return to his regular schedule as an Electrician after December 31. The Foreman's position was scheduled to work from 7 a.m. to 3 p.m.., rest days Thursday and Friday, and Wells worked this schedule as a Foreman for the period indicated. His schedule as an Electrician was 3 P.m.. to 11 p.m., rest days Sunday and Monday. Form 1 Award No. 7989 Page 2 Docket No. 7896 2-NF-EW-179 On Saturday, December 11, Wells first worked the foreman's hours and then followed it by working as Electrician for the next eight hours. On his rest day as Foreman, Wells was permitted to work as Electrician on five days -- Deceinber 16, 17., 235 30,, and 31,

The Organization claims that this work as Electrician was in violation of Rules 30 and 26(a) which read as follows:

"Temporarily Filling Foremanship:

Rule 30. Should an employee be assigned temporarily to fill the place of a foreman he will receive the established rate of the position and be governed by working conditions and rules of such position."

"Assignment of Work:

Rule 26, (a) None but mechanics or apprentices regularly

employed as such shall do mechanic's work as per special

rules of each craft, except foreman at points where no

mechanics are employed,"

During the period from December 11 through December 31, Wells was temporarily assigned as foreman and received the established. rate for the position. He zras therefore governed during that period by the "working conditions arid rules of the position", which logically include the working schedule and assigned rest days. Since he yras temporarily employed in the Forman's position, it cannot b e said that he was "regularly" employed during the same period as an Electrician. Thus, the Board finds that Rule 30 applied to Wells as to assigned rest days and that Rule 26(a) logically prohibits him from Electrician's work during the sane period.

The Carrier argues that such finding would operate improperly in the instance of an employe assuming the position of foreman for a day or two, as occasionally happens, and in this instance it eras not certain how long Wells would be needed. The fact is, however, that the Foreman's position was "temporarily" filled for three continuous weeks, and thus is not identical with a one-day assigrnnent. The Carrier also argues that special provisions of the vacation Memorandum of Agreement requires the observance of Foreman's rest days when an employe serves as replacement while the Foreman is on vacation; absence of such language i n general. situations, the Carrier claims,, permits an employe to "drop back" on rest days. The Board does not agree with this view and, as noted above, finds the practice prohibited in general under the teams of Rules 30 and 26(a),
Form 1 Award No. 7989
Page 3 Docket No, 7896
2-MP-Ew-' 79

The Claim will be sustained, but only at the pro .rata rate, based on marry previous decisions holding that this is the proper rate when work is ;not performed-by the Claimants.

A W A R D

Claim sustained to the extent indicated in the Findings. NATIONAL RAILROAD ADJUSTIMENT BOARD By Order of Second Division Attest: Executive Secretary National Railroad Adjustment Board By ··~i:..'~ ~/ os;~:xnarie I3rasch - Administrative Assistant Dated J Chicago, Illinois., this 27th day of June, 1979. a