Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11288
SECOND DIVISION Docket No. 10987
2-EJ&E-CM-'87
The Second Division consisted of the regular members and in
addition Referee T. Page Sharp when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Elgin, Joliet and Eastern Railway Company
Dispute: Claim of Employes:
1. That the Elgin, Joliet and Eastern Railway Company violated Rules #88,
#96 and #97 of the current working Agreement when they recalled from furlough
to work on the Gary, Indiana Repair Track Temporary Carmen R. Kelly, S. Marsh,
G. Anderson, R. Davies, J. Slusser, A. Clark, L. Poe and K. Hamilton and worked them on Saturday and Sunday, their normal rest days, and only compensated
them at the pro rata rate. Dates involved are Saturday and Sunday, January 7
and 8, 1984; Saturday and Sunday, January 14 and 15, 1984; and Saturday, January 21, 1984.
2. That the Elgin, Joliet and Eastern Railway Company be ordered to compensate the above-named Temporary Carmen an additional four (4) hours' pay at
the pro rata rate on the dates as shown by each Temporary Carman's name account of said rule violations:
K. Hamilton - Sat., Jan. 7 and Sun., Jan. 8, 1984
A. Clark - Sat., Jan. 7 and Sun., Jan. 8, 1984.
J. Slusser - Sat., Jan. 7 and Sun., Jan. 8, 1984.
R. Kelley - Sat., Jan. 14 and Sun., Jan. 15, 1984.
G. Anderson - Sat.., Jan. 14 and Sun., Jan. 15, 1984.
R. Davies - Sat., Jan. 14 and Sun., Jan. 15, 1984.
L. Poe - Sat., Jan. 14 and Sun., Jan. 15, 1984.
S. Marsh - Sat., Jan. 21, 1984.
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.
Form 1 Award No. 11288
Page 2 Docket No. 10987
2-EJ&E-CM-'87
Claimants were Carmen on furlough when recalled because of an upturn
in business. The Claims are for work on Saturday and Sunday immediately following the recall.
Two Rules govern the workweek. Rule #88 - The 40-Hour Workweek -
reads in relevant part:
"(a) - General:
The Carrier will establish for all employes within
the scope of this agreement, subject to the exceptions contained in this rule, a workweek of forty
(40) hours, consisting of five (5) days of eight (8)
hours each, with two (2) consecutive days off in each
seven (7); the workweeks may be staggered in accordance with the Carrier's operational requirements; so
far as practicable the days off shall be Saturday and
Sunday. The foregoing workweek rule is subject to the
provisions of this agreement which follows:
(b) - Five-Day Positions:
On positions the duties of which can reasonably be met
in five (5) days, the days off will be Saturday and
Sunday."
Rule #96 - Rest Day and Holiday Work - reads, in part, as follows:
"(a) Service performed by an employe on his first assigned rest day and/or designated holidays, shall be
paid for at the rate of time and one-half.
(b) Service performed by a regularly assigned hourly
or daily rated employe on the second rest day of his
assignment shall be paid at double the basic straight
time rate provided he has worked all the hours of his
assignment in that workweek and has worked on the first
rest day of his workweek, except that emergency work
paid for under the call rules will not be counted as
qualifying service under this rule, nor will it be paid
for under the provisions thereof."
It was undisputed that recalled employees have ten days in which to report
pursuant to Rule 82.
The Carrier argues that the President of the Local approved of
working the employees on Saturday and Sunday at the straight time rate and
that this representation should be binding. It is unfortunate for good faith
in Labor Relations that such commitments are made, but scores of Awards hold
that only the General Chairman can deviate from the terms of the Agreement.
We will follow those Awards.
Form 1 Award No. 11288
Page 3 Docket No. 10987
2-EJ&E-CM-'87
The same doctrine must be applied to the agreement of the Claimants
to work at straight time during the period. This fact was not refuted by the
Organization, but once the Claims have been submitted, the provisions of the
Agreement must determine the outcome.
The Carrier stated that the employees report to work unassigned and
remain so because of the ten day reporting provision, until the Monday after
they report to work when they are assigned to a bulletined position. The
Carrier characterized this unassigned work as coming from a "pool." The
Organization denied that a "pool" existed, but did not adequately refute the
contention that the employees were unassigned.
Rule 88, the governing rule, does not mandate that employees have Saturday and Sunday as rest days. The rest days are described such that "so far
as practicable the days off shall be Saturday and Sunday." The contention was
made that a seven day operation would be the example of a non-practicable
assignment. However, the rule is not so qualified.
Because of the nature of the duty to report and the temporarily unassigned nature of the employee it is not practicable to initially assign him
Saturday and Sunday as rest days. It obviously becomes practicable on the following Monday. We find that for the short period of time the recalled employees did not have a regular assignment, the rule permits Saturday and Sunday
work, so long as the forty hour provision is not exceeded, to be paid at the
straight time rate.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest.
Nancy J~er - Executive Secretary
Dated at Chicago, Illinois this 1st day of July 1987.