This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
At first blush it would appear that the Carrier was not applying the Agreement when it worked five Claimants nine hours on October 28, 1995 but only paid them eight hours. However, after reviewing all material exchanged between the parties during the on-property handling (any and all new arguments appearing for the first time before this Board have been ignored), it is readily apparent that the dispute is more far reaching than simply resolving the issue for a particular day. Had the alleged infraction occurred on October 27 or October 29, 1995, the claim would have merit. But in this instance it involves the last Sunday in October when, by ordinance, a normal 24 hour day is increased to a 25 hour day by setting the clocks back one hour at 2:00 A.M.
All five Claimants were assigned to the third shift on the claim date. It is; unrefuted in the record that they were also assigned in April when. again by ordinance_ the normal 24 hour day was reduced to a 23 hour day by advancing clocks one hour al: 2:00 A.M.
The Organization not only argues a violation of Rule 7(a) but also alludes to a past practice of the Carrier alwavs paying the ninth hour at the time and one-half rate when the time changed in the Fall.
The Carrier denied the Organization's past practice contention. To the contrarv. the Carrier argued it had never adjusted pay either at the beginning of the time change when third shift personnel only work seven hours or in the Fall when they work nine. hours.
Since Daylight Savings Time has been in effect since World War 11. it is obvious some understanding evolved concerning both days of the time change, but to the astonishment of the Board, neither side component furnished any Awards involving any of the crafts on any of the component carriers that now make up CSX Transportation. Inc. Truly then we either have a situation where the Carrier had been paying the ninth hour. as alleged by the Organization, or not paying the ninth hour because it does not adjust pay for the seven hour shift, on the basis it equals out. Form I Award No. 13277'
Obviously, the Board is confronted with a conflict of facts regarding the parties' past practice, which the Board, by a long line of precedent, will not resolve. However, the burden of proof is forever upon the shoulders of the petitioning party in Rules cases, and in this instance, it failed to meet this burden.
At this juncture, the Board will not resolve the issue of the appropriate pay for third shift employees when the time is changed back. Rule 7(a), on any other day, would be applicable, but on the last Sunday in October it has to be considered in conjunction with a time change mandated by ordinance. (See Fourth Division Award 3459 and. Award 37 of Public Law Board No. 369).
Regarding the Carrier's quid pro quo treatment of the time change, the parties developed that in the Spring, when third shift personnel worked only seven hours but. were paid for eight hours, three of the Claimants actually worked seven hours but were: paid eight hours. Two others were off on paid leave (vacation or personal leave) for which they were paid eight hours even though their regular assignment, had they worked, was only for seven hours.
The Board is in full accord with the aforequoted excerpt from Fourth Division award 3459 and incorporates that advice as written.