Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11432
SECOND DIVISION Docket No. 11381
88-2-87-2-20
The Second Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
PARTIES TO DISPUTE:
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM:
1. That the Missouri Pacific Railroad Company violated Rule 3,
Paragraph B and Rule 12 of the controlling Agreement when Master Mechanic
Grimaila instructed Carman R. R. Hutchinson to change rest days from Tuesday
and Wednesday to Saturday and Sunday.
2. That the Missouri Pacific Railroad Company violated Rule 3,
Paragraph B and Rule 12 of the controlling Agreement when they failed to
bulletin new job given Carman R. R. Hutchinson and failed to bulletin new job
with Saturday and Sunday off in line with Rule 12 of the controlling Agreement
and failed to pay claim in the amount of claim explained in Exhibit A.
3. That accordingly, the Missouri Pacific Railroad Company be
ordered to compensate Carman R. R. Hutchinson in the amount of eight (8) hours
pay at straight time rate for June 8 and 9, 1985 which were assigned work days
of his regular position and time and one-half rate for June 11 and 12, 1985
which were the regular rest days of his assigned position. This is a continuous claim for eight (8) hours pay at straight time rate for each Saturday
and Sunday and time and one-half rate for each Tuesday and Wednesday until the
violation is corrected.
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. 11432
Page 2 Docket No. 1138.1
88-2-87-2-20
In the instant case the facts are not in dispute that Claimant had
been injured on the job, June 7, 1985. Subsequent to the injury, Claimant was
unable to perform his regular Carman's duties. Claimant's regular position
had rest days of Tuesday and Wednesday. The Master Mechanic and Claimant
discussed the restricted activity program and arranged alternative work. The
new work involved computer procedures inputting AAR billing but with rest days
of Saturday and Sunday.
The Organization charges that the Carrier violated Rules 12 and 3(b)
in that it created a new position which it did not bulletin, and failed to pay
overtime to Claimant for working on his rest days of Tuesdays and Wednesdays..
The Organization notes that it was not a party to the decision reached between
the Claimant and Master Mechanic after the injury. It argues that neither had
the authority to alter the Agreement.
It is the position of the Carrier that no Rule was violated.- Since
the Claimant's schedule was changed, wherein Saturday and Sunday were rest
days, Claimant did not work overtime on his rest days. Even further, Claimant
was agreeable to the change as the alternative schedule was not mandated or
required. As no new vacancy was created, and the change was only for two days
and lasted less than fifteen days, Rule 12 was inapplicable. Carrier also
notes that its action permitted the Claimant to attend therapy and his doctor
on the weekend and in no manner either restricted the seniority of other
Carmen, nor led to any lost wages for any employee, including the Claimant.
Our review of the case at bar indicates that the Carrier created a
new position. Under the Agreement such had to be bulletined unless specific
conditions were met. They were not met in the instant circumstances.
The only position Claimant had was his regular position having
neither bid for nor been awarded the position he held in the restricted
activity program. Nowhere on property does Carrier raise Rule 17 (Faithful
Service) which is therefore not before this Board for consideration. What
stands before this Board is evidence of record that Claimant worked the rest
days of his regular position and failed to work his normally assigned Saturdays and Sundays.
Carrier argues that Claimant agreed to such a decision and was therefore working such days of his own volition. This is not rebutted. Rule 3(b)
on overtime refers to "employes required to perform work on their rest days."
The full meaning of the Rule cannot be construed to suggest that Claimant's
employment by Carrier on his off days would not constitute overtime. In this
industry agreements revolve around positions and seniority, not work and
employees. Claimant was not empowered to alter the Agreement and was not
exempted from its rules. The rules apply to positions which are advertised,
bid and awarded. The overtime accrues to an employee of a position. The only
position Claimant had was his regular assignment. Claimant failed to work his
designated days. This Board must enforce the Agreement language and as such,
the Carrier has violated the Agreement. Claim of the Organization that Carrier violated the Agreement is sustained.
Form 1 Award No. 11432
Page 3 Docket No. 11381
88-2-87-2-20
As for the compensatory part of this claim, the Board's complete
review of the record finds circumstances which are unique and require denial.
There is no evidence of record that Carrier's action represents either an
ongoing pattern or an attempt to flout the Agreement. The record indicates in
the instant circumstance that the Carrier acted in good faith. Although not
an estoppel to damages, the Organization does not rebut the Carrier's argument
that no employee suffered lost wages and that no employee's seniority was
negatively affected. There is no record of evidence that the Claimant or any
other employee suffered any employment disadvantages because of Carrier violation. Under the particular and unique circumstances of this single instance,
the monetary part of the claim is denied (Second Division Award 7289).
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 24th day of February 1988.