Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9265
SECOND DIVISION Docket No. 8978
` 2-FGE-CM-'82
The Second Division consisted of the regular members and in
addition Referee Gilbert H.
Vernon when
award was rendered.
( Brotherhood Railway Carmen of the United States and Canada
Parties to Dispute: (
(Fruit Growers Express Company
Dispute: Claim of Employes:
1. That, the Fruit Growers Express Company violated the controlling
agreement when they established a three-shift operation in their
Alexandria Car Building Shop, and failed to assign the first
shift employes to eight consecutive hours including allowance
of 20 minutes for lunch.
2. That accordingly, the Fruit Growers Express Company be ordered
to compensate all first shift employes in the amount of 20 minutes
pay each at the pro rata rate for each day the three-shift operation
was in effect.
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 issue in this case primarily involves Rule 5 of the pertinent Agreement
which states:
"Where three shifts are employed, starting time of first shift shall
be governed by Rule 3, and starting time of each of the other shifts
shall be regulated accordingly. Each shift shall consist of eight (8)
consecutive hours including allowance of twenty minutes for lunch
within the limits of the fifth hour."
The Employes contend that the Carrier violated Rule 5 when the Carrier,
in their opinion established a third shift operation in the car building shop of the
Carrier's Alexandria, Virginia, shop and subsequently failed to schedule the first
shift employees for 8 consecutive hours including an allowance of 20 minutes for
lunch.
After carefully considering the respective arguments, it is the conclusion
of the Board that there is insufficient evidence to sustain the claim, and therefore,
Form 1
Page 2
Award No. 9265
Docket No. 8978
2-FGE-CM-'82
law
it must be denied. The Board is not convinced and it cannot be concluded that the
Organization fulfilled their burden of factually showing that "three shifts were
employed" within the meaning of the Rule. The Carrier has asserted, and it has not
been denied on the property during the handling of the claim, that only a few employees
were employed on the third shift in the underframe shop and not the shop in general.
Moreover, we note that the addition of these few employees began September 11, 1978
and ended November 4, 1978. The Organization argues that even though there may have
been a limited number of employees assigned to the third shift during this period,
it does not relieve the Employer of its obligation under Rule 5. The Board disagrees.
While it is recognized that some employees were assigned during hours known as the
third shift, the better reasoned interpretation of Rule 5 is one which would require
that more than a"few" employees for more than, what in this case was, a temporary
period be employed before it can be concluded "three shifts are employed': To have
prevailed in this case, the Organization would have had to show more substantial,
persuasive and permanent work activities on the third shift to properly invoke Rule 5.
Because of the small number of employees, the short time involved and the limited
nature of the work involved, it is our conclusion that three shifts were not employed.
There seems to have been no comparison or similarity in scope of the assignments during
the hours of third shift assignments and those on the first and second shifts. There
would have to be more similarity to show a violation of Rule 5.
A W A R D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
e~narie Brasch - Administrative Assistant
Dated Iat Chicago, Illinois, this 28th day of July, 1982.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division