Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No. 8 08
SECOND DIVISION Docket No. 8496
2-TRRAofStL-EW-'81
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Terminal Railroad Association of St. Louis
Dispute: Claim of Employes:
1. That the Terminal Railroad Association of St. Louis violated Rule 11
of the April 2, 1945 controlling agreement when they did not distribute
overtime equally from their record kept for electricians thereby
depriving Electrician Steve Toth on September 28, 1978 the provisions
of the Agreement at St. Louis, Missouri.
2. That, accordingly, Carrier be ordered to compensate Electrician Steve
Toth eight hours (8') at time and one-half rate for September 28, 1978.
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.
The Organization claims a violation of Rule 11 in that an Electrician was
not scheduled for overtime work on September 28, 1978, while another Electrician
with greater overtime accumulation was called. Rule 11, Distribution of Overtime
reads in pertinent part as follows:
"Record will be kept of overtime worked and men called, with
the purpose of distributing it equally among those interested
in participating."
Handwritten records for the year 1978 submitted by the Organization, and
accepted for purposes of argument by the Carrier in its submission to the Board,
show that just prior to September 28, six Electricians had accumulated from
40
to
44 hours of overtime (the Claimant having accumulated 40 hours). Three other
Electricians in the work group had accumulated 48, 49 and 80 hours respectively,
but these are not at issue since none of these three was called to work on September
28.
Form 1
Page 2
Award No.
8708
Docket No.
8496
2 -TRRAof St L-EW-'
81
Electrician McKeown was called for work on September 28. He had also been
assigned on the previous day, September 27, as a result of which his overtime
accumulation had risen from 36 (then lowest on the list to 44.
As to the portion of the rule restricting its application to employes
"interested in participating", there is no showing that the Claimant or any others
were not interested.
The Carrier's central argument is that the rule need not be interpreted to
require in every single instance that only the employe with the lowest overtime
accumulation at that moment be called, but rather that there is an obligation over
a period of time to maintain a generally equal overtime distribution. In the
Carrier's defense, a number of past awards are cited as so holding. Many of such
Awards, however, concern themselves with rule language calling for overtime
distribution "as equally as possible" or "as near as possible, an equal distribut ion".
Other Awards deal with continuous assignment into a second rest day or other
particular circumstances or practices. The rule applicable here, however, is more
precise,' stating simply that overtime shall be distributed "equally", placing a
restriction on the Carrier's right of assignment which this Board may not vary.
Nor did the Carrier make any showing that the Claimant could not have been
assigned to work on September 28, when he (as well as three other employes) had a
lower overtime accumulation than Electrician McKeown. The Carrier failed to show
any other practice employed by the parties in carrying out the rule; indeed, the
sparse record which is provided shows in previous instances that the Electrician
with lowest overtime accumulation was assigned.
A sustaining award is warranted, but -- in line with the general reasoning
applied in the Second Division for time not actually worked -- payment for eight
hours at straight time rather than the punitive rate is appropriate.
A W A R D
Claim sustained to the extent of payment to the Claimant of eight hours'
pay at straight time rate.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
1-2
BY ,/ d~P
osemarie Brasch - Adm~'nistrative Assistant
Dat /d at Chicago, Illinois, this 6th day of May,
1981.