NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that section laborers Max Rubick and M. Anthos shall be paid the difference between what they received at pro rata rate and that which they should have received at time and one-half rate for services rendered during overtime hours from February 1 to 20, 1943, inclusive.
EMPLOYES' STATEMENT OF FACTS: Section laborers Max Rubick and M. Anthos, Sayre, Pa., were regularly assigned to daytime service from 8:00 AM to 4:30 PM with thirty minutes off for lunch. Effective February 1, 1943 they were instructed to work nights, continuing working nights until February 20, 1943.
The Agreement in effect between the Carrier and the Brotherhood is by reference made a part of this Statement of Facts.
POSITION OF EMPLOYES: Rules 4-d-1, 4-f, 4-h-1, and 4-h-2 of Agreement between the Carrier and the Brotherhood of Maintenance of Way Employes effective February 15, 1938 read:
While this and the other claim on which ex parte submission is being made today, are the only claims which have progressed to your Board, it is true that te method of filling such positions and the practice of working some employes, ordinarily working during the day, at night, all at pro rata time for eight hours and time and one-half after eight hours has been in effect for all time in the past and at the present time, under t6 agreement which was in effect at the time of this occurrence and under the agreement dated April 15, 1944 wherein the rules with respect to starting time, etc., are the same as in the old agreement.
We beg to submit that there has been no violation of the agreement in this case, and these men were properly paid, and in substantiation of our position, I call attention to the rulings of your Board numbered 2172, 2714 and 282.
OPINION OF BOARD: Claimants were section laborers regularly assigned to single shift day service, working from 7:00 A.M. to 4:00 P.M. In February, 1943, it became necessary to maintain fires at some of the Carrier's water stations to prevent freezing Claimants were assigned to attend such fires between 9:00 P.M. and 5:00 A.M. It is the contention of Claimants that they are entitled to pay at the time and one-half rate for the days worked outside their regularly assigned positions. The applicable rules of the current Agreement are:
It is the contention of Claimants that the starting time of their regular single day shift assignment could be changed to any time between 6:00 A.M. and 8:00 A.M. after 20 hours' notice without a rule violation but that any work performed outside of the shift thus established are overtime hours for which the overtime rate applies.
It is evident that the work performed in maintaining fires was of such a nature that it did not constitute a position and consequently the employes designated to perform it were not "assigned" to new positions in the usual sense of type word. They were performing work outside of their regularly assigned hours.
We think the decision is controlled by Awards 2973 and 2775, both being cases where the facts are very similar to the facts in the confronting case and arising under agreements having similar applicable rules. Awards 2826, 2714 and 2172, cited by the Carrier, appear to have been decided under agreements having applicable rules that are not contained in the Agreement between the parties in the present case. Consequently, on the basis of Awards 2973 and 2775, an affirmative award is required.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds: