Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11362
SECOND DIVISION Docket No. 11147
2-BN-CM-187
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That the Burlington Northern Railroad Company violated the
provisions of the current controlling Agreement when they changed working
hours in the arrival and departure yards from 12:01 a.m. backward to 11:00
p.m., causing a partial change in rest days.
2. That because of said changes, Car Inspectors D. C. Lauderdale,
R. R. Harrison, F. M. Hearington, S. R. Brittman and F. A. Payne were forced
to work seven (7) hours each of their first rest days.
3. That the above named Car Inspectors be compensated seven (7)
hours each at the time and one-half rate of pay for Car Inspectors, commencing
October 16, 1984 and continuing; until satisfactorily settled.
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.
At the Carrier's Memphis, Tennessee Yard facilities, Car Inspectors
are on duty 24 hours per day, seven days per week. Prior to October 16, 1984,
the starting times and quitting times of the three shifts were:
First Shift
Second Shift
Third Shift
8:00 a.m. - 4:00 p.m.
4:00 p.m. - 12:00 a.m.
12:00 a.m. - 8:00 a.m.
Changes in the Carrier's operations prompting a change in the
starting times of the three shifts. The new hours of the Car Inspector
assignments were:
Form 1
Page 2
Award No. 11362
Docket No. 11147
2-BN-CM-187
First Shift 7:00 a.m. - 3:00 p.m.
Second Shift 3:00 p.m. - 11:00 p.m.
Third Shift 11:00 p.m. -7:00 a.m.
Claimants herein are all assigned to the third shift. They claim to
have been adversely affected by the change in their starting time. That
assertion is premised on the belief that when the starting times of the third
shift changed, the rest days of the Claimants also changed. The example
referred to by the Organization as demonstrative of the effect of the change
in working hours is as follows:
"For example, the week of January 6, 1985
through January 12, 1985, Sunday through and
including Saturday. If you work from 12 midnight to 8:00 a.m., with Friday and Saturday
rest days, your last day to work is at 8:00 a.m.
Thursday morning and you then return to service
following two rest days at 12 midnight Saturday
night for your first day back.
6thS 7thM 8thT 9thW lOthT 11thF 12thS
Work Work Work Work Work Rest Rest
Now change the hours of this shifts to 11:00
p.m., which results as follows.
6thS 7thM 8thT 9thW lOthT 11thF 12thS
Rest Work Work Work Work Work Rest
By changing the starting time backwards, every
man on the midnight shift was forced onto different rest days."
Thus the Organization maintains that when Carrier changed the starting time of these third shift employes, they were forced to work seven hours
of their first assigned rest day, thus triggering Rule 50 of the controlling
Agreement, which reads as follows:
"The exercising of seniority to displace junior
employes, which practice is usually termed
'rolling' or 'bumping' will not be permitted,
except employes displaced through abolition of
jobs, force reduction or by demotion, and other
employes so affected thereby, will be allowed to
place themselves in such jobs as their seniority
entitles them to, but only such employes
who are
actually disturbed by rearrangement of jobs,
abolition of jobs or demotion will be permitted
to exercise their seniority in this manner."
(Emphasis added by the Organization.)
Form 1 Award No. 11362
Page 3 Docket No. 11147
2-BN-CM-'87
The Organization furthee contends that Carrier's action was violative
of Rule 7(a), which states:
"For continuous service after regular working
hours, employes will be paid time and one-half
on the actual minute basis with a minimum of one
hour's pay at pro rata rate for any such service
performed."
The Carrier asserts that the Claimants' rest days remain unchanged
following the change in schedule. According to its calculations, Carrier
argues that the third shift Inspectors' time off was not shortened by the
change at all. Furthermore, Carrier rejects the Organization's contention
that Claimants are entitled to displacement rights under Rule 50 of the Agreement, arguing that the Rule does not apply to the instant situation where
starting times were changed. Finally, Carrier stresses that there is nothing
in Rule 7(a) to support the Organization's demand for penalty payment, as this
case does not involve instances where Claimants were required to work after
their regular working hours.
Based on the record evidence before us, it is clear that the pivotal
issue in this case is whether the organization met its required burden of
proving that Claimants' rest days were altered when the starting times of
their third shift Car Inspector assignments were changed by one hour. In our
judgment, the Organization is correct when it argues that the rest days of the
Claimants were changed A simple example of this should suffice. A third
shift Inspector with Friday and Saturday rest days would begin his workweek at
midnight on Saturday, which was actually compensated for as Sunday. His final
day in the workweek would commence Wednesday night at midnight and end Thursday morning at 8:00 a.m. After observing his Friday-Saturday rest days, he
would again begin his workweek Saturday night at midnight.
When the Carrier changed the starting time of the assignments by one
hour, however, the third shift rest days were altered by the change in time.
Thus, a third shift Inspector, instead of beginning his workweek on midnight
Saturday, would start at 11:00 p.m. on that date. The first and last day of
his workweek would begin Wednesday night and end at 7:00 a.m. Thursday. At
the close of that shift, he would then observe Thursday and Friday rest days
before returning Saturday at 11:00 p.m. for the start of another workweek.
Since the rest days were altered, the question then becomes whether
the Claimants are entitled to displacement rights under Rule 50 of the Agreement. In our view, the Carrier's action in the instant case does not fall
within the explicit provisions of that Rule nor can a reasonable inference be
made that the provisions of the Rule apply herein. Employes are permitted to
exercise their seniority under Rule 50 when there has been an abolition of
jobs, a force reduction or a demotion. These conditions are obviously not
present here.
Form 1 Award No. 11362
Page 4 Docket No. 11147
2-BN-CM-'87
Nor do we agree that the latter portion of Rule 50, which refers to
"rearrangement of jobs," is applicable. The assignments here were not rearranged. The starting times were simply changed one hour in accordance with
Agreement provisions. Though this altered the rest days fur Claimants on the
third shift, it did not trigger the "bumping" provisions under Rule 50.
In view of our findings, we need not address the issue of whether
Claimants are entitled to overtime under Rule 7(a).
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ancy J.A)0f'er - Executive Secretary
Dated at Chicago, Illinois, this 21st day of October 1987.