t
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9108
SECOND DIVISION Docket No. 9028
2-CR-EW-182
The Second Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That under the current Agreement Electrician P. E. Blinn was improperly
compensated on April 5, 1979, when the Consolidated Rail Corporation
(ConRail) moved him from his regularly assigned position and to a
different location which is in violation of Rule 2-A-1(e).
2. That accordingly the Consolidated Rail Corporation (ConRail) be ordered
to compensate Electrician P. E. Blinn an additional three (3) hotr5
pay for April 5, 1979 as required by the Agreement.
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, 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.
Claimant P. E. Blinn is an Electrician, employed by Carrier in the Supporting
Force at the Conway Engine House, on the 7:00 a.m. to 3:00 p.m. shift during a
Monday through Friday work week. On April
5,
1979, Claimant was assigned to the:
Load Box to test a diesel unit. As a result of this assignment, the organization
submitted a claim requesting three hours penalty pay under Rule 2-A-1 (e) of
the Schedule Agreement then in effect. The claim was denied and has progressed
to this Board for resolution. The portion of Rule 2-A-1 (e) pertinent to this
case reads as follows:
"Except as provided in Transport Workers Regulation 2-A-4
(Rule 2-A-5 for System Federation), an employe moved from
one position to another on
the
same shift, at the instant
of Management, will receive an additional three
(3)
hours'
pay at the straight time rate of the regular assignment
he holds for each day he is required to work on another
position."
On February 10, 1965, a memorandum of understanding pertaining to the
application of this paragraph was signed by both parties. The application of
that memorandum is critical to this claim and reads as follows:
Form 1 Award No. 9108
Page 2 Docket No.
9028
2-cR-Ew-'82
"rEMORANDUM
For the purpose of the application of this Rule an employe
shall be consi3ered as having been moved from one position
to another on the same shift at the instance of management:
(1) If he is assigned to a vacancy on an advertised position
other than his own and performs to a substantial degree
the duties required by the vacant position;
(2) If he is assigned to the performance of work not ordinarily
included in his regular assignment and such work performance
becomes recognized as a 'position' by subsequent advertising
under the provisions of Rule 2-A-1 (b);
(3)
If he is assigned to the performance of work not ordinarily
included in his regular assignment for a period of four
(4)
hours or more at the location of his regular assignment;
(4)
If he is assigned to perform work whether ordinarily included
in his regular assignment or not, at a location other than
that of his regular assignment for a period of four
hours or more.
NOTE: The term 'location of his regular assignment'
as used in paragraphs
(3)
and
(4)
above shall
be understood to mean the location in his seniority
district at which the employe performs the duties
ordinarily included in his regular assignment."
The issue here is not the proper interpretatirn of paragraph
4
of the Rule
in question or the application and interpretation of the Memorandum of
1965
but
whether the facts of Claimant Blinns' case are covered under the Rule or under
the interpretation.
The organization argues that Claimant is a Support Force Electrician who
was assigned to a Load Box job. This, it contends, caused Claimant to work at
a location other than his regular site. He normally worked inside the Conway
Engine House and the Load Box was located outside the Engine House. The
assignment required that he perform work (load testing of locomotives) that
is not a regular part of his normal duties. The organization contends that
either or both of these situations require that Carrier pay the claim as
submitted. The Organization points to paragraphs
3
and
4
of the
1965
Memorandum:
for its support of this position.
Carrier, on the other hand, argues that prior to the Load Box being
established as a position in
1973,
Support Force personnel were assigned to
Load Box work with no penalty being paid. After the Load Box position was
established, some supporting force employes were occasionally paid the penalty
when they worked the Load Box position. When Carrier's Labor Relations Department
became aware of this, it stopped the procedure. It claims that these payments
were made by a supervisor in error.
Form 1
Page
3
Award No. 9108
Docket No.
9028
2-CR-EW-182
It further argues that since the Load Box position has been abolished,
Carrier has relrerted back to the procedures used prior to
1973.
It finally
argues that Load Box work is work regularly included in the assignment of an
Electrician and that the Load Box operation is performed at the Conway Engine
House location. Given these facts, Rule 2-A-1 (e) and the
1965
Memorandum
interpreting paragraph
4
of that Rule do not apply and the claim should be denied.
This Board has carefully reviewed the record of this case and the awards
submitted to support the parties respective positions. We must conclude that
Carrier's case is the more persuasive. The Organization has not carried its
burden of establishing that the operation of the Load Box is not work that would
ordinarily be included in Claimant's regular assignment, or that the Load Box
is not part of Claimant's work location, the Conway Engine House. Neither has
the Organization been successful in establishing that the incidents of penalty
payments made to Supporting Force Electricians working the Load Box constitute
a past practice and were not mistakes of a supervisor, as Carrier claims.
The Load Box was operated by Supporting Force Electricians prior to
1973
with no penalties claimed. Carrier has abolished the position of Load Box
Operator and has resorted to the procedures it used to get the work done prior
to
1973.
This Board sees no basis on which to require that each time a Supporting
Force Electrician performs the Load Box operation for more than four hours that
a three hour penalty be paid. Rule 2-A-I (e) does not apply to the facts of this
case.
Award No.
90+9
(LaRocco) recently adopted by this Board addressed the
identical issue presented here. We denied that claim. We shall do the same in
this instance.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
4L
00~
By i
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 9th day of June, 1982.
NATIONAL RAILROAD ADJUSTMENT BOAS
By Order of Second Division