NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Nathan Engelstein, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
CENTRAL OF GEORGIA RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood (GL-5442) that:
(1) The Carrier violated the Clerks' Agreement of December 1,
1956, as amended when it refused to properly compensate regularly
assigned Relief Clerk 'A', J. H. Burdeshaw, at Albany, Georgia Yard
Office for a full eight (8) hour day when he was called on October
25, 1962, one of his assigned rest days, to complete the assignment
of regularly assigned Clerk I. C. Willis at that point when the latter
became ill of virus and
headache and
was unable to finish his assignment.
(2) Relief Clerk 'A' J. H. Burdeshaw, shall now be compensated
for an additional one (1) hour and forty-five (45) minutes at the
time and one-half rate of his position, salary $490.40 per month, for
October 25, 1962.
EMPLOYES' STATEMENT OF FACTS: Relief Clerk 'B', I. C. Willis,
was regularly assigned to work on Wednesday, October 24, 1962, having
begun his assignment for that day at 11:59 P. M.,
which would
terminate at
7:59 A. M., on Thursday, October 25, 1962. Clerk Willis' assignment,
which
is identified as Relief Clerk 'B's', works as follows:
3:59 P. M. to 11:59 P. M., Mondays, relieving Yard Clerk
D. C. Davis
11:59 P. M. to 7:59 A. M., Tuesdays and Wednesdays, relieving
Utility Clerk B. J. Warren
11:59 P. M. to 7:59 A. M., Thursdays and Fridays, relieving Utility Clerk A. W. Lawrence
Rest days, Saturdays and Sundays, salary, $486.90 per month.
[422]
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433
AWARD
Claim denied."
AWARD 6379
Third Division (Kelliher)
"The Petitioner has failed to sustain its burden of proof to show
a contract violation.
AWARD
Claim denied."
AWARD 6378
Third Division (Kelliher)
"Based upon an analysis of all of the evidence, it must be found
that the petitioners have failed to sustain the burden of proof,
and, therefore, claim is accordingly denied.
Claim denied."
AWARD 5418
Third Division (Parker)
"* * * Under our decisions (see, e.g., Award No. 4011) the burden of establishing facts sufficient to require or permit the allowance of a claim is upon him who seeks its allowance, and where that
burden is not met, a denial Award is required for failure of proof.
AWARD
Claim denied."
Also see other awards, including Third Division Awards Nos. 8172, 7964,
7908, 7861, 7584, 7226, 7200, 7199, 6964, 6885, 6844, 6824, 6748, 6225, 5941,
2676 and others. Also see Second Division Awards Nos. 2938, 2580, 2569,
2545, 2544, 2042, 1996 and others, all of which clearly state that the burden
is on the claimant party to prove an alleged violation of the agreement.
To date, the Employes have produced no evidence of any violation.
In view of all the facts and circumstances shown by the Carrier in this
Ex Parts Submission, Carrier respectfully requests the Board to deny the
claim in its entirety,
OPINION OF BOARD: Relief Clerk 'A' T. H. Burdeshaw was called on
one of his rest days to complete the assignment of Yard Clerk 1. C. Willis,
who became ill after reporting for work at 11:59 P. M. on Wednesday,
October 24, 1962. Mr. Willis left his assignment at 1:30 A. M, on Thursday,
October 25, and Mr. Burdeshaw worked the remainder of the eight hour day,
a period of six hours and fifteen minutes, for which he received compensation at the time and one-half rate. He makes claim that under Rule 35 (e),
he is entitled to compensation for a full eight-hour day at penalty rate, or,
an additional one hour and forty-five minutes at time and a half.
Rule 35 (e), Service on Rest Days, provides that:
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434 .
"Service rendered by employes on assigned rest days shall be
paid for under the call rule, unless relieving an employe assigned to
such day, in which case they will be paid for eight (8) hours at the
rate of the position occupied, or their regular rate, whichever is
higher. Where Sunday is one of the rest days, service on Sunday
will be paid for as provided in Rule 36. Regular assigned rest days
shall not be changed except after such advance notice to the employe
as is required under applicable rules."
Since Claimant on his rest day relieved the regularly assigned relief
clerk 'B' assigned to such day, he is entitled to be compensated for the full
eight hours under the above rule. His claim for payment for an additional
one hour and forty-five minutes at time and one-half rate is sustained.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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
That the Agreement was violated.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 30th day of July 1965.