Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8372
SECOND DIVISION Docket No. 8011
2-P&BR-CM-'
80
The Second Division consisted of the regular members and in
addition Referee Wesley A. Wildman when award was rendered.
( System Federation No.
4,
Railway Employes,
( Department, A. F. of L. - C. I. 0.
Fatties to Dispute: ( (Carmen)
(
( Patapsco and Back Rivers Railroad Company
Dispute: Claim of Employes:
No. 1. That under the correttl Agreement on the Patapsco and Back Rivers
Railcoad, Sparrows Point, Maryland, the Carrier improperly scheduled
carmen, D. Killinger and D. Andrews to work a shift with hours
comamencing at 10:00 A.M. and ending at 6:00 P.M., such shift covering
job referred to herein as Job A-1, formerly a regular 7x00 A.M. to
3
P.M. scheduled job.
No. 2. That the Carrier changed the shift starting ties contrary to the
Controlling Agreement, and without the approval of the conmittee.
No.
3.
That accordingly, the Carrier be ordered to re-establish the former
position and compensate carmen Killinger and Andrews for all hours
worked on this irregular shift, specifically, five
(5)
hours per
day for a total of ten (10). days or fifty
(50)
hours at twenty (20)
cents per hour., constituting second shift premium rate of pay for
Carman D. Killinger, and five
(5)
hours per day at twenty (20~ cents
per hour for each day worked on Job A-1 by carman D. Andrews from
the date of August
16, 19?7,
constituting second shift premium rate
of pay.
Findings:
The Second Division of the Adjustment Board, upon the whole record and a11.
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+.
o
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 relevant Agreement language in this case is as follows:
"Rule
5
__ Shifts
(a) When one shift is employed, the starting tune shall
not be earlier than
6
a.m. for employees of both
Form 1 Award No.
83'72
Page 2 Docket No. 8011
2-P&BR-CM-' 80
"Patapsco and Back Rivers Railroad Co. and South
Buffalo Railway Co.,, however, when one shift is
employed the starting time shall normally be not
earlier than 7 a.m. nor later than 8 a.m., but the
Company may start such shift between
3
p.m. and
4
p.m.
or between ll p.m. and 12 midnight,
(b) When two shifts are employed, the starting time of the
first shift shall be governed by paragraph (a) of this
rule, and the second shift shall start not later than
11 p.m.
(c) When three shifts are employed, the starting time of
the first shift shall be governed by paragraph (a) of
this rule, and the starting time
for
each following
shift shall be regulated accordingly."
"Rule
6
-- Shift Premiums
Each Employee scheduled to work on the second shift shall
be paid a premium of 20 cents per hour for all hours
worked by him on that shift, and each Employee scheduled
to work on the third shift shall be paid a premium of
30
cents an hour for all hours worked by him on that shift.
Shift premiums payable under this Rule shall not be
included as part of the Employee's rate of pay for the
purposes of computing overtime compensation under these
Rules."
In August of
1977,
Carrier scheduled Carmen Claimants Killinger and Andrews
to a newly established shift beginning at 10 a.m. and terminating at
6
p.m.
The Organization claims that the above-cited Agreement language precludes the
establishment of a shift with such hours. They argue that the only permissible
starting times of a shift are clearly specified in the language of Rule 5(a),
They claim further that the word "normally" in Rule 5(a), far from implying
that permissible shift start times specified may be deviated
from
under
"abnormal" circumstances, is simply the referent for the specific "but the
Company may start ,.." rights of the Carrier to schedule a single shift as a
second or third shift, at the starting times specified, rather than as a first
shift, if it desires.
Also, arguing, in effect, in the alternative, the Organization makes claim
that all hours worked on any such as a 10 a.m. to
6
p.m. shift should be
considered second shift hours, and should all be paid at the second shift
premiums rate.
Alternatively, the Carrier strenuously asserts that the use of the word
"normally"
in Rule 5(a) "is the best evidence that there may be occasions when
the starting times of such shift will not always be 'no earlier than 7 a.m. nor
later than
8
a.m."'. The Carrier argues that in the absence of "clear rule to
the contrary, the Carrier has the elusive right to schedule its work force".
Form 1 Award No.
8372
page
3
Docket No.
8011
2-P&BR-CM-' 80
Finally, the Carrier notes that the scheduling of this allegedly an molous
shift was clearly necessitated by unavoidable and uncontrollable changes in time
of interchange with the Western Maryland Railroad.
Viewed solely as a matter of abstract literal analysis on the relevant
Agreement clauses, this Board confesses to having considerable respect for the
basic, threshold Organization argument. However, the language involved is not
without ambiguity, and the right asserted by management to schedule shifts as
business necessity dictates is a vital one which this Board will not curb in the
absence of a wholly clear, compelling and unambiguously expressed intent of
the parties to do so. Indeed, the organization has strongly implied in 1), a
grievance filed previously with Carrier, (dropped, the Organization claims,
inadvertantly, as a result of error) in a virtua17,y identical fact situation
and, 2), certain arguments made in their submission-in this case, that they do
not view Rule 5(a) as precluding, regardless of circumstances, the right of the
Carrier to schedule shifts beginning at hours other than those mentioned in
Rule 5. Accordingly, we rule that the Carrier is not precluded by Rule 5 frown
starting shifts at times other than those specified in Rule 5, when business
conditions dictate the appropriateness of doing so.
Having thus, in part, at least, eschewed sterile literalism in deciding
the first aspect of this case, we do not think it is beyond the intent and
"spirit" of this contract language considered in its totality (Rules 5 and
6)
to hold with the Organization that when a shift is established with a starting time
later than the hours specified in Rule 5(a), all of the hours of that shift
will be considered, for purposes of premium pay, to be hours worked on the next
succeeding higher-premium shift.
There is, after all, at the very least, a strong presumption embodied
in Rule 5 that, whenever possible, shifts will begin within the times specified.
in the Rule. This presumption is, of course, importantly related to legitimate
employee convenience and expectations regarding a work life scheduled at
relatively "normal" hours in relation~to the way in which the rest of industry
and the society as a whole work, rest and play. It does not seem to us
unreasonable that when, under the language in this Agreement, the Carrier finds
it necessary to disrupt the convenience and the normal expectations of employees
by scheduling shifts to start at unanticipated times other than those specified.
in Rule 5(a), that it compensate affected employees at the shift premium rate
for all hours worked on that shift. Specifically, then, we rule that any shift,
scheduled to begin after
8
a.m. but prior to
3
P.m. will pay second shift premium
for a1.1. hours worked on that shift.
A W A R D
Claim sustained in part and denied in part as per the findings.
Form 1
Page
Attest: Executive Secretary
National Railroad Adjustment Board
Award No. 8372
Docket No. 8011
2-P&BR-CM-' 80
NATIONAL RAILROAD ADJUS2TENT BOARD
By Order of Second Division
BY
~-rC
~.~.v
o rie Brasch - Administrative Assistant
Dated at Chicago, Illinois., this Lath day of Tune,
1980.