Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9137
SECOND DIVISION Docket No.
9034
2-EJ&E -CM- 182
The Second Division consisted of the regular members and in
addition Referee Rodney E. Dennis when award was rendere,1.
Brotherhood Railway Carmen. of the United States
Parties to Dispute:
~ and Canada
Dispute: Claim of Employes:
Elgin, Joliet and Eastern, Railway Company
1. That the Elgin, Joliet and Eastern Railway Company violated the
current working Agreement, specifically Rule
91,
when it improperly
compensated Temporary Carman James Luna at the straight ti= rate of
pay when he was forced. to change. shifts on December
9, 1979..
2. That, the Elgin,.Zloliet and. Eastern Railway Company be ordered to.
compensate Temporary Carman James Luna as additional four
(4)
hours pay
at the pro rata rate of pay for said violation of Rule 91. on December
9,. 1979.
Findings
The Second Division of the Adjustment Board, upon the whole record and all
the evidencap. -finds,.. that:,-., 'TheE carrier- o 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.
Claimant, Carman J. Tuna, was employed by Carrier-on, the repair: track- in..
Gary, Indiana. He worked the 8:00 a.m.. to
4:30
P.m.. shift. On November 17,
197'9,
he was assigned to fill a trainyard car inspector's position on the
12:00 midnight to 8:C0 a.m. (3rd) shift. Claimant was compensated. under Rule
91
for this shift change.. Rule:.
91
reads in pertinent part as. follows
"Employes changed from one shift to another will be- paid..
overtime- rates for then first- shift of each change.. Employee=. .
working two, shifts. or more on a new shift shall be considere&;_
transferred. This- will not apply when shifts are exchanged..,
at the request of the employe involved.."
On December-9,
1979,
at 8:00 a.m., Claimant finished his last. tour of duty
on the car inspector's job. He imma-diately reported to his former assignme::t
on the first shift and worked eight hours
He wag
not paid for that first shiftchange in accordance with Rule 91, but was rather compensated.on.a straighttime basis.
Form 1
Page
2
Award No. 9137
Docket No.
9034
2-EJ&E-CM-'
82
The Union argues that Claimant was forced into the job by Carrier.. He
should therefore be paid time and one-half for the first time that he worked
the new shift. The Organization is requesting that Claimant be awarded four
hours at the pro rata rate. Carrier argues that Claimant exercised his
seniority and, by choice, returned to his old job. Therefore, he was not
ed at the direction of Carrier and does not qualify for pay under Rule 91.--
This Board is once again confronted with a shift change casein which.
Carrier argues that Claimant exercised his seniority to change shifts and the:
Organization argues that Claimant, by virtue of Carrier's action, was forced to
change. shifts. The parties have presented the Board with a number of awards on
both sides of- the issue.
We have carefully reviewed the facts of= the instant case and past awards:
on the subject. It is the Board's consensus that these facts (that is, that
Claimant was. displaced when the incumbent on the car inspector's job returned and
claimed his job) closely parallel those we considered in Award 7251 (Roadley).
Our reasoning in that case applies equally as well to the present one.
Claimant was displaced because the men who owned the job cane back to work.
He was forced to claim the only job available to him. He utilized his seniority
to keep a job. In Second Division Award No. 15116, Referee A. Wenke outlined the
principled that-applies. here when deciding_,whether: seniority.- .hag_. been exercised.
He said:-
"Rule 8 expressly exempts the payment of overtime when the
transfer from one shift to another is made by an employe
"in the exercise of seniority rights.' This specific
exemption is in no way qualified as to the act being
voluntary or involuntary... emphasis added
In the instant case Claimant exercised his seniority, albeit possiblyinvoluntarily.. Carrier did not direct Claimant to change shifts. He was
displaced and he-took the. only job available to him. He exercised his seniority
to remain at work..
This Board has stated on numerous occasions that it believes that rules
such as Rule 91 are Intended to penalize Carriers when they indiscriminately
change shift assignments of employee. The overtime rate penalty does not apply
when.employes exercise seniority or change shifts for their own benefit. We
continue to subscribe to that interpretation. (,See Second Division Awards.
7251 and
63Zt$.
and awards cited. therein.) We see no- bas is in this record for
concluding that Carrier indiscriminately forced the changes that took place.
Carrier has not violated. the agreement.
ALIARD:
Claim denied.
Form I
page 3
Award No. 9137
Docket No.
9034
2-EJ8E -CM-'82
NATIONAL RAIIRCAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By
'e-~z
: e Brasch - Administrative Assistant.
Dated at Chicago, Illinois, this 16th day of June, 1982.