Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9350
SECOND DIVISION Docket No.
8863
2-EJBE-cm-'
83
The Second Division consisted of the regular members and in
addition Referee Carlton R. Sickles when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Elgin, Juliet & Eastern Railway Company
Dispute: Claim of Employes:
1. That the Elgin, Juliet and Eastern Railway Company violated the current
working Agreement specifically Rule
91
when it improperly compensated
Temporary Cayman R. C. Gilkerson at the straight time rate of pay when
he was forced to change shifts on June 11,
1979.
2. That the Elgin, Juliet and Eastern Railway Company be ordered to
compensate Temporary Cayman R. C. Gilkerson an addit9o na1 four
(4)
hours pay at the pro rata rate of pay for said violation of Rule
91
on June 11,
1979·
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.
The Claimant was the most junior-qualified man on the extra list and was
assigned to fill a vacancy. When the vacancy was filled, the Claimant returned
t© his previous assignment.
Claimant, in the process of changing these assignments, was required to make
a shift change. Claimant seeks to be paid time and one-half for the shift change
necessary upon returning to his previous assignment based upon Rule
91
as follows:
"Rule 1
Changing Positions or Shifts
a) An employee changing from one regular position to another
regular position which involved a change of rest days, will
be paid straight time for days (except holidays) he actually
works on such positions between last rest day of former
position and first rest day of new position. The applica
tion of this section will have no effect on the application
_ t
Form 1 Award No. 9350
Page 2 Docket No.
8863
2 -EJ8cE -CM-'
83
of parabraph (b) of this rule.
b) Employees changed from one shift to another will be paid
overtime rates for the first shift of each change ....
This will not apply when shifts are exchanged at the
request of the employee involved ..."
The reason for the first shift in assignment was for the Claimant to replace
an incumbent who was assigned to another position. Claimant was assigned this
position until a new incumbent could be selected for the position. In no way,
can the Claimant be said to have volunteered for the assignment. In conformity
with the procedures established between the parties, he was selected by the
Organization to fill the assignment because no one volunteered for the assignment.
In returning to his previous assignment, the Carrier alleges that the Claimant
had to assert his seniority and, therefore, it was a voluntary act on his part
relying on that portion of Rule 91 which provides:
"This will apply when shifts are exchanged at the request of
the employee involved."
Carrier further resists on the basis that Claimant did not hold a regular
position during the pendency of the bid period.
With respect to this latter assertion by the Carrier, it relies heavily on
Award
4630
(Second Division) wherein the claim was denied because the Claimant
therein was held not the holder of a regular position. In that matter, the
Claimant was filling a series of vacancies, until an incumbent was selected for
each one. The Board held that in holding a job under these circumstances, the
Claimant was not holding a regular job, awaiting determination of the successful
bidder.
In the instant matter, however, the Board notes that the Claimant did have
a regular job at the time he was reassigned, however briefly, to the new
assignment pending the establishment of an incumbent. Under the particular
circumstances of this matter, the Board will not be guided by the rationale
of the Carrier.
The Board has reviewed the many Awards provided by both parties and has
noted that Awards cited by both of them take note of "divergence of views contained
in former awards of this division" Award x+277 (Second Division) and "precedent is
of little value .... Claims involving a change in shifts must be judged on a
case by case basis recognizing the peculiar facts of each case." (Award
8414
(Second Division).
The Board must, therefore, decide whether the exercise of seniority rights
under the particular facts of this case is "at the request of the employee". In
doing so, it will consider the circumstances surrounding the initial assignment
change in evaluating the second reassignment.
Form 1
Page 3
Award No. 9350
Docket No. 8863
2-EJ&E-CM-'83
The Board has determined that since the first reassignment was not "at the
request of the employee" and for an obviously short period of time, that the
exercise of seniority rights to return to his original assignment cannot be
considered under the circumstances "at the request of the employee", and the
claim will be sustained..
A W A R D
Claim sustained.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD
ADJUSTMENT
BOARD
By Order of Second Division
By
rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 26th day of January, 1983.