STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood:
EMPLOYES' STATEMENT OF FACTS: Prior to January 25, 1954, James Washington and Richard Sallie were working as Section Laborers, Section No. 337, South Dallas, Texas, with hours of assignment from 8:00 A. M., to 5:00 P. M., with one (1) hour for meal period.
On January 25, 1954, Section Laborer James Washington's assignment was changed to 4:00 P. M., until 12:01 A. M., January 26, 1954, for a period of eight (8) hours only.
On January 26, 1954, Section Laborer Richard Sallie's assignment was changed to 12:01 A. M., until 8:00 A. M., for a period of eight (8) hours only.
In making the above changes in the hours of assignment for each of these two Section Laborers, such Section Laborers were required to perform service not comprehended within the assignment of the regular section force No. 337, thereby rendering service during overtime hours, for which they were only compensated at their respective straight time rate. Likewise, in changing the hours of assignment for these two employes, they were deprived of working their regular tour of duty, i.e., January 25, 1954 for Section Laborer James Washington and January 26, 1954 for Section Laborer Richard Sallie.
James Washington did not suspend work to absorb overtime on January 25, 1954.
Richard Sallie did not suspend work during hours of his assignment January 26, 1954.
James Washington has been allowed eight hours pay for working the eight regularly assigned hours of his assignment January 25, 1954; and Richard Sallie has been allowed eight hours pay for working the eight regularly assigned hours of his assignment January 26, 1954. James Washington having been fully paid for hours of his regular assignment January 25, 1954, and Richard Sallie having been fully paid for hours of his assignment January 26, 1954; no sum would be due either employe under part (2) of the claim.
Inasmuch as James Washington performed no service outside of the assigned hours of his regular assignment January 25, 1954, and Richard Sallie performed no service outside of the assigned hours of his regular assignment January 26, 1954, no overtime has been earned by either party and no sum is due either claimant under part (3) of the claim.
All data submitted in support of Carrier's position have been heretofore submitted to the employes or their duly authorized representatives.
The carrier requests ample time and opportunity to reply to any and all allegations contained in the Brotherhood of Maintenance of Way Employes', System Committee's and Employee' submission and all pleadings.
Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company of Texas expressly denies each and every, all and singular the allegations of the Brotherhood of Maintenance of Way Employee, System Committee of the Brotherhood, and Employes.
For each and all of the foregoing reasons, the Railroad Company respectfully requests the Third Division, National Railroad Adjustment Board, deny said claim, and grant said Railroad Company such other relief to which it may be entitled.
OPINION OF BOARD: This case involves a claim on behalf of two named claimants who were employed as section laborers on the Carrier's property in South Dallas, Texas. They were regularly assigned to work in such capacity from 8:00 A. M. to 5:00 P. M., with one hour for lunch.
There is no material dispute in the record with regard to the facts of the occurrences which gave rise to the instant claims. On January 25, 1954 Claimant Washington was required to change his shift to 4:00 P. M. to 12:00 Midnight, and on January 26, 1954 Claimant Sallie was required to work 12:01 A. M. to 8:00 A. M. instead of his regularly assigned shift from 8:00 A. M. to 5:00 P. M.
The Petitioner contends that in directing these changes in working hours the Carrier violated the terms of Article 7, Rule 7, and Article 9, Rule 3 of the effective Agreement.
The respondent Carrier contends that it acted in accordance with the provisions of Article 7, Rule 7 when it made the changes about which c om. 8033-8 928
plaint is made in this case. It points out that it gave the necessary notice for making the change, which thereupon gave the supervisory officer the right to change starting times. The Carrier denies emphatically that there was any suspension of these claimants from their regular hours of work to absorb overtime.
The record shows in the instant situation that more than twenty-four hours notice of change in starting time was given Claimants. However, the making of the traffic density check, the work involved in the instant dispute, was not regular assigned service as that herein is contemplated in the first part of the cited rule. Furthermore, it is clear that, even if otherwise permitted, there was no intention here of changing the regular starting time of claimants. Hence it was a purely temporary assignment to what was in effect the hours of another shift.
We cannot say that the Carrier made the change in question as a deliberate and calculated violation of Article 9, Rule 3, but the result had the effect of violating the rule.
Carrier relies upon Awards 2826 and 7053 of this Division. We believe both of these are clearly distinguishable from the instant case. We are of the view that the principles set out in Awards 3055, 3156, 3784, 4109, 4151, 4744, 5423 and 5440 are more appropriate to this case, and justify a sustaining Award.
Since two violations are found here, the question arises regarding the payment which the Carrier shall make. On the authority of Awards 4109, 6423 and 5440 we believe payment should be the pro rata rate for Claimants' regular shifts from which they were suspended on the dates in question, except that Claimant Washington's payment shall be pro rata for seven hours since he did work one hour which would have normally been work in the time span of his regular assignment.
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:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and 8033-9 929