Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10740
SECOND DIVISION Docket No. 10519
2-MP-CM-'86
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:
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated Agreement of
April 10, 1980 at Houston, Texas when they used a Cayman who was not
on the overtime board to drive truck, November 13, 1982.
2. That the Missouri Pacific Railroad Company be ordered to compensate
Cayman P. Z. James in the amount of seven (7) and one-half (.5)
hours at the punitive rate for this violation.
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 this dispute waived right of appearance at hearing thereon.
The Carrier operates a large train yard and repair facility at Houston,
Texas. On Saturday, November 13, 1982, the Carrier discovered that the
kerosene fuel to supply caboose stoves at the caboose supply tracks at the
Settegast Yard was exhausted. The Carrier assigned Cayman B. Davis to
transport the fuel to the caboose yard. Cayman Davis had just completed his
regularly-scheduled shift, ending at 3:00 P.M., and he was required to work
7.5 hours overtime transporting the fuel.
The Organization claims that the overtime hours should have been assigned
instead to Cayman P. Z. James. Although the day in question was one of his
regularly-scheduled rest days, Cayman James was the first name "out" on a list
of Carmen available for overtime work as truck drivers. Cayman Davis, who was
assigned the work, was not on the overtime list.
Form 1
Page 2
Award No. 10740
Docket No. 10519
2-MP-CM-'86
The overtime list in question was prepared pursuant to a local agreement
between the parties to establish such a list. The Carrier claims that this
list is not binding, and instead relies upon the only language concerning
overtime in the main agreement, which states, in relevant part:
"Rule 8. Distribution of Overtime
"(b) Record will be kept of overtime worked and
men called with the purpose in view of distributing
the overtime equally. Local Chairmen will, upon
request, be furnished with record."
The Carrier cites numerous Awards of this Board which hold that a Carrier need
not adhere rigidly to an Overtime Board, as long as it meets the contract's
requirement that overtime be assigned on a roughly equal basis among the men
over a period of time. Second Division Awards Nos. 8689, 7897, and 9129.
The issue in this dispute is slightly different, because here the employe
assigned to perform the work was not on the Overtime Board at all, whereas in
the Awards cited above the employe assigned to perform the work was on the
overtime list, but was not the first person on the list. The Board has
addressed our issue, however, in Second Division Award
No.
9267, where it held
that the language of this Agreement "does not limit the Carrier to calling
only employes on the overtime board
...."
Award No. 9267 involves the same
Agreement Rule and parties as the claim at issue here, and a similar local
agreement concerning the assignment of overtime. In that Award the Board held
that the lack of contract language is not a per _se barrier to the claim if the
Organization could show that the Carrier had violated a consistent past
practice. The Organization has not presented any evidence concerning a past
practice in this case. The Board must rely on the contract language
exclusively and deny the claim.
In doing so the Board need not address at great length the other issues
raised by the parties in this dispute. Previous Awards of this Board,
referred to above, have determined the proper weight to be given to a local
agreement, so the parties' arguments concerning the effect of this local
agreement are not relevant. The Board does note, however, that the local
agreement relied upon by the Organization in this dispute simply established
an Overtime Board for truck drivers. It does not state that all overtime for
truck drivers will be assigned off this Board, and therefore carries even less
weight than, for example, the local agreement referred to in Second Division
Award
No.
7897, which stated: "We propose to work all road work, and all
overtime work off of one rotating overtime board."
The Board views with equal skepticism, however, the Carrier's claim that a
local agreement signed by its master mechanic has no force once he is
transferred. The Board need not decide the merits of this argument, given the
lack of overall weight accorded to the local agreement.
Form 1 Award No. 10740
Page 3 Docket No. 10519
2-MP-CM-'86
Because the Organization has failed to meet its burden to prove that past
practice of the Carrier was to assign overtime exclusively from the Overtime
Board, the Board must deny the claims.
A WAR D
Claims denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest
Nancy J %*'er - Executive Secretary
Dated at Chicago, Illinois, this 19th day of February 1986.