Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12291
SECOND DIVISION Docket No. 12099
92-2-90-2-196
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
(Chesapeake and Ohio Railway Company)
STATEMENT OF CLAIM:
1. That the Chesapeake & Ohio Railroad Company (CSX Transportation,
Inc.) (hereinafter "carrier") violated Rule 11 of the Shop Crafts Agreement
between Transportation Communications International Union - Carmen's Division
and the Chesapeake & Ohio Railroad Company (CSX Transportation, Inc.) (revised
June 1, 1969) on February 14, 1989 when the Carrier failed to call James Ison
(hereinafter "claimant") for overtime under the provisions of Rule 11 of the
Shop Crafts Agreement.
2. Accordingly, the claimant is entitled to be compensated for eight
(8) hours pay at the Carmen's applicable overtime rate for the carrier's violation of the aforementioned Agreement Rule.
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.
This dispute concerns the application of Rule 11 as to the proper
distribution of overtime work. Rule 11 reads in pertinent part as follows:
"RULE 11
(c) Record will be kept of overtime worked and
men called with the purpose in view of distributing
the overtime equally.
Form 1 Award No. 12291
Page 2 Docket No. 12099
92-2-90-2-196
(3) There will be an overtime call list (or
call board) established for the respective crafts
or classes at the various shops or in the various
departments or subdepartments, as may be agreed upon
locally to meet service requirements, preferably by
employees who volunteer for overtime service . . . .
(4) There will be, as near as possible, an equal
distribution of overtime between employees who volun
tarily sign the overtime call lists.
(9) An employee refusing call in his turn will
lose the turn the same as if he had responded . . . .'
In the instance here under review, the Organization contends without
contradiction that the Carrier "failed to utilize the overtime call board to
acquire the proper employee" to work an overtime opportunity on February 14,
1989. Instead, according to the Organization, the Foreman "hand picked" an
employee. For the Claimant, whose name was apparently next on the call board,
the Organization seeks appropriate pay.
The Carrier does not deny the facts as presented concerning the
specific overtime opportunity. The Carrier argues, however, that the "remedy
for the Claimant's alleged loss of opportunity . . . would be to allow him to
equalize the hours, not outright payment as claimed." The Carrier notes that
in the ensuing six weeks the Claimant had the opportunity to work 144 hours of
overtime, while the employee used on the date in dispute worked only 26 hours
of overtime.
In response to this, the Organization contends that what happened
subsequently is not relevant and that the Rule violation occurred when the
Carrier failed to follow the overtime call board.
Rule 11 does mandate the use of an "overtime call board," and there
is an implied local practice here that overtime distribution is governed by
the use of such call board. Remedy for failure to do so is less precisely
stated -- "as near as possible, an equal distribution of overtime." In this
instance, and in accord with many previous Awards, the failure to offer the
Claimant his proper overtime opportunity was remedied immediately thereafter.
The Rule simply does not call for the requested payment.
The Board notes, however, that the Rule provides for use of a call
board in overtime distribution and that the use of such board is acknowledged
at this location. Consistent failure by the Carrier to make use of the call
board, if demonstrated, could well lead to a sustaining Award.
Form 1 Award No. 12291
Page 3 Docket No. 12099
92-2-90-2-196
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
00
Attest:
01
Nancy -,0Kver - Executive Secretary
Dated at Chicago, Illinois, this 1st day of April 1992.