Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10256
SECOND DIVISION Locket No. 9924
2-B&O-CM-'85
The Second Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
( Brotherhood Railway Carmen of the United States and Canada
Parties to Dispute:
( The Baltimore and Ohio Railroad Co.
Dispute: Claim of Employes:
No. 1. That Carrier violated the controlling Agreement, specifically,
Rule 8, Distribution of Overtime, when on the date of May 8, 1981,
they allowed a carman with 658 hours accumulative overtime, to
work at New Castle,
Pennsylvania, in
lieu of Claimant, who was, in
fact, entitled to be called from the overtime board, was available,,
qualified, and had only 271 hours accumulated overtime.
No. 2. That, accordingly, Carrier be ordered to compensate Claimant for
all time lost account this violation of Rule 8 of the controlling
Agreement, Claimant, A. E. Ciale11a, two (2) hours and forty (40)
minutes, call time.
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 employes 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 was not called to perform overtime service covering the 500 mile
air brake test on the Philadelphia Trailer Jet, Engine #4308. Instead, Carman A.
Nocera was instructed by the Carrier to remain on duty after his first shift and
perform the overtime work. The record reveals that the Claimant was twenty miles
from New Castle Juction, Pa. while Carman Nocera was on duty at New Castle Junction
and immediately available to perform the air brake test. A call to the Claimant
would have resulted in
unnecessary delay
to the train.
The Organization contends that the Carrier should have called the Claimant
according to the dictates of Rule 8 and allowed Carman Nocera to go home. The
Organization points to the fact that the Claimant had only 271 hours of overtime
while Nocera had accumulated 658 hours overtime as justification for its argument.
Form 1 Award No. 10256
Page 2 Locket No. 9924
2-B&O-CM-'85
The Carrier argues that the disparity in overtime hours arose for two specific
reasons. First, the Claimant was absent from duty due to illness for a sevenmonth period immediately preceding the claim date, October 2, 1980 through May 6,
1981. Second, Carman Nocera is a member of the New Castle Junction Wrecking Crew
which creates more opportunities to work overtime. Additionally, the Carrier
takes the position that it is under no obligation to assist the Claimant in
making up lost overtime opportunities and was not required under the provisions
of Rule 8 to call the Claimant.
"Rule 8
Record will be kept of overtime worked with the purpose
in view of distributing the overtime equally among the
employes of each craft insofar as their qualifications
will permit.
There will be, as near as possible, an equal distribution of overtime between employes who voluntarily request
to be placed on the overtime call lists."
Many Awards of this Division have held that the Carrier is not required to
maintain absolute equalization of overtime. See Second Division Awards 6613,
7624 and 7897.
In Second Division Award 8335, the Board concluded that "a claim for improper
distribution must be measured over a period of time and not tied to one particular
incident. From the record, it is clear that the Organization failed to prove
that the Claimants were denied access to substantially equal overtime over a
period of time".
In the instant case, the organization has not met its burden of proof vis--avis a substantial denial of access to overtime. There has been no showing that
this Claimant was deprived of overtime opportunities extending over a reasonable
period of time because of the Carrier's assignment on the day in question. To
the contrary, the Board notes that the Claimant had accumulated 271 hours of
overtime albeit during a specified period of time.
There are a plethora of Awards which hold that an equalization system of
overtime, as provided for here in Rule 8, does not necessarily require that a
particular employee be selected or called for a particular assignment. Rather,
these overtime rules have been interpreted to require that overtime be distributed
as equally as possible over a reasonable period of time. There is no evidence in
the record to demonstrate that the Carrier has not complied with this principle.
Therefore, the Carrier did not violate the overtime provisions of Rule 8. See
Second Division Awards 5136, 4980, 2123, and 2035.
Form 1 Award No. 10256
Page 3 Docket No. 9924
2-B&O-CM-'85
A WAR D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second.Division
Attest:
ooo, ~,,
Nancy JI,her - Executive Secretary
Dated at Chicago, Illinois this 6th day of February 1985.