Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12138
SECOND DIVISION Docket No. 12003-I
91-2-90-2-107
The Second Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
(Delbert C. Fraley, James Tackett, Charles Parker,
(James Ison, Lester Ross, Ralph R. Stephenson, Chester
(Allen, Larry Brinegar, George Hall, Lester Marcum,
(Mike Percell, Larry Kearns, Earnest Stevens
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
STATEMENT OF CLAIM:
1. That the service rights of Carmen D. C. Fraley, L. Brinegar,
J. Tackett, G. Hall, C. Parker, L. Markham, J. Ison, M. Purcel, L. Ross,
L. Kerns, R. Stephenson, E. Stevens and C. Allen and Rule 13 of the Shop
Crafts Agreement were violated, account said employees were not paid overtime
rates while changing from one shift to another at the instance of the Carrier.
2. Accordingly, each claimant is entitled to be compensated for
four (4) hours pay at the applicable Carmen's rate for the date of January 29,
1987.
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.
Claimants assert that they were forced from the second shift to the
first shift in violation of Rule 13 which provides for payment of overtime
under certain circumstances.
The Carrier contends that all second shift Carmen positions were
abolished. Thus, Carrier argues that the Claimants were not forced from one
shift to another; rather they assumed the only positions available to them.
Form 1 Award No. 12138
Page 2 Docket No. 12003-I
91-2-90-2-107
As a procedural matter, the Carrier questions that this claim is
properly before the Board because the Claimants' written Notice of Intent to
file the Submission dated May 26, 1990 was not received by the Division until
June 26, 1990, whereas the deadline for progressing the case was May 30, 1990.
See Third Division Award 25130 concerning timely submission to the Board.
However, it has come to our attention that a perfectly addressed Notice was
forwarded to the Division, postmarked May 25, 1990. For some unexplained
reason the U.S. postal authorities returned the Notice to the Claimants
stamped "Return to Writer - Undeliverable as addressed - No forwarding order
on file." The failure of the Division to receive the document by May 30, 1990
was clearly not the fault of the Claimants and we will consider the claim on
its merits.
Although the Claimants had been assigned to the second shift, as a
result of exercises of seniority following the abolishment of sixty-eight
Carmen positions on the second shift, on January 28, 1987, they were given
overnight notification to report to the first shift on January 29, 1987.
Because five (5) days notice was not given, Claimants argue that they are
entitled to overtime as provided in Rule 13.
In the Submission to the Board, Claimants mention that the Carrier
did not post a proper bulletin notice and that they did not "exercise seniority" in placing themselves on the first shift. However, we search the record
in vain to find that the Claimants raised or pursued the propriety of the
notice and abolishment while the matter was under active review on the property. Accordingly, Claimants may not raise that issue before this Board in
the first instance.
The pertinent Rule provides that "shift changing" overtime payments
are not applicable when exercising seniority rights. When the Carrier abolished the second shift, it argues that the Claimants, in essence, exercised
seniority in lieu of furlough.
There is ample authority that in this type of situation, payment of
overtime is not required. Claimants' shift was abolished and they could
assume the only shift available to them, i.e. the first shift, or cease active
employment. We find nothing in the record which remotely suggests that any of
the Claimants desired to cease active employment and/or accept furlough.
Limited to the facts of this record, we feel that the Claimants exercised
seniority. See Second Division Awards 11944 and 11750 among numerous others.
A W A R D
Claim denied.
Form 1 Award No. 12138
Page 3 Docket No. 12003-I
91-2-90-2-107
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J%~r - Executive Secretary
Dated at Chicago, Illinois, this 18th day of September 1991.