NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Form 1 Award No. 12801
Docket No. 12442
94-2-91-2-285
The Second Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
PARTIES TO DISPUTE: (International Association of Machinists
( and Aerospace Workers
(
(Kansas City Southern Railway Company
STATEMENT OF CLAIM:
"1. That the Kansas City Southern Railway Company
violated Rule 2(a) and Rule 8(a) of the
Current Controlling Agreement between the
International Association of Machinists and
the Kansas City Southern Railway, when it
harshly and unjustly refused to pay Machinist
Andrew Hall, Jr. for four (4) hours pay at the
basic straight time rate account being denied
the right to complete his regular assigned
shift on November 24, 1990.
That the Kansas City Southern Railway Company
make Machinist Hall whole for the four hours
of straight time pay he was denied on November
24, 1990, after working an overtime shift on
November 23, 1990."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole
record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved
in this dispute are respectively carrier and employee 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. 12801
Page 2 Docket No. 12442
94-2-91-2-285
The Claimant was working his regular job assignment from 8:00
a. m. to 4:00 p.m., but was notified by his foreman that he would be
sent home at noon due to the "hours of service law", since the
Claimant had performed certain overtime work previously.
The Organization cites Rule 2(a), which refers to five eighthour days with two consecutive days off as the basic schedule.
Rule 8(a) of the Agreement advises that when it becomes
necessary for employees to work overtime, they shall not be laid
off during working hours to equalize the time.
The Carrier argues that the Claimant worked from midnight to
8:00 a.m. on an overtime basis, and then moved into his regular
assignment at 8:00 a.m. But, because the Claimant performed the
work of "moving locomotives", he became subject to the "hours of
service act" and, because he was a "covered" employee, he was not
permitted to work more than four hours of his regular position.
There is disagreement between the parties as to whether or not:
the employee was, in fact, covered by the Hours of Service Act,
based on the work he performed on the overtime shift.
It is not incumbent upon this Board to interpret the Hours o1:
Service Act and, thus, we refuse the invitation to do so.
But, regardless of a potential violation of the Act, the
Carrier is responsible not only to comply with federal statutes,
but also to abide by the terms of its Agreement.
The Carrier designates the work that is performed by the
employee while engaged in overtime, as well as on regular shifts.
Under the circumstances, we feel that the claim is well-stated
and should be sustained.
A W A R D
Claim sustained.
Form 1 Award No. 12801
Page 3 Docket No. 12442
94-2-91-2-285
0 R D E R
This Board, after consideration of the dispute
identified above, hereby orders that an Award
favorable to the claimant be made. The
Carrier is ordered to make the Award effective
on or before 30 days following the postmarked
date the Award is transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois this 26th day of January, 1995.