Award No. 16626
 Docket No. TE-15708

THIRD DIVISION

(Supplemental)




PARTIES TO DISPUTE:
 TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
 CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employees Union on the Chicago, Burlington & Quincy Railroad, that:

1. Carrier violated the Agreement between the parties when on June 1, 2, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, July 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, August 1, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 31, September 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 26, 28, 29, 30, October 1, 2, 3, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, November 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 30, December 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 1964, January 1, 2, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, February 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, March 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 29, 30, 31, April 1, 2, 3, 5, 6, 7, 8, 9, 10, 12, 13, 14, 1.5, 16, 17, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, May 1, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 31, 1965, it failed and refused to properly compensate the occupant of the Agent-Operator position at Mt. Pleasant, Iowa.


2. Carrier shall compensate the occupants of the Agent-Operator position at Mt. Pleasant, Iowa at the time and one-half rate as follows:




June 1-1 hour; June 2-45 minutes; June 3-45 minutes; June 7 -3 hours; June 8-45 minutes; June 10-1 hour; June 11-1 hour; June 12 - 50 minutes; June 13 - 45 minutes; June 14- 3 hours; June 15-50 minutes; June 16-1 hour; June 17-2 hours 20 minutes;








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EMPLOYES' STATEMENT OF FACTS: The Agreement between the parties, effective May 1, 1953, as amended and supplemented, is available to your Board and by this reference is made a part hereof.


In December of 1957, the monthly rated Agent's position at Mt. Pleasant, Iowa was by agreement reclassified to that of Agent-Operator. There has never been a position of Agent-Operator at Mt. Pleasant until December, 1957.


From the date reclassified to Agent-Operator in December of 1957, the occupant of the position at Mt. Pleasant was paid overtime for work performed in excess of eight hours per day, until June 1, 1964.


The position of Agent-Operator at Mt. Pleasant, Iowa is a 6-day monthly rated position with assigned hours 8:00 A. M. to 4:00 P. M., Monday through Saturday, with assigned rest day of Sunday.


On the dates and times listed in the Statement of Claim, the Claimants remained on duty outside of their regular assigned hours to perform one or more of the following duties:














Claims were filed and handled in the usual manner up to and including the highest designated officer of the Carrier and have been denied.


Correspondence reflecting this handling on the property is attached hereto as TCU Exhibits 1 through 7. Exhibits 1 through 6 cover the claim of H. J. Earley, for the month of September, 1964 and is typical of the handling of the other claims on the property; therefore, the other correspondence will not be submitted as exhibits.




CARRIER'S STATEMENT OF FACTS: The position of Agent-Operator at Mt. Pleasant, Iowa, occupied by claimant, is a monthly rated position described in Section 3(b) of Rule 8 of the currently effective collective agreement. It has been a monthly rated position covering all services rendered since prior to 1938. It is carried in the wage scale at page 44 of the agreement. The position is assigned six days a week, with Sunday as rest day. The Union is claiming that the occupant of the position is entitled to payment for time worked in excess of 8 hours on a regularly assigned working day. The Car-


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rier, on the other hand, contends that the only additional payment required over and above the monthly rate is that described in Rule 8, Section 3(b), namely, on rest days.


The schedule of rules agreement between the parties, effective May 1, 1953 and supplements and additions thereto, are by reference made a part of this submission.


OPINION OF BOARD: Claim is for payments at time and one-half for work performed by Claimants, occupants of a monthly rated Agent-Operator position, at Mt. Pleasant, on hours beyond their regular eight hours, but on their regular work days. Organization argues that Rule 5 controls the dispute. Organization also argues that, since the position of Agent-Operator at Mt. Pleasant did not exist until 1957, at which time the monthly rated Agent position there was changed by agreement to the Agent-Operator position here involved, no rule prior to September 1, 1949 (as may be referred to by Carrier through Rule 8, Section 3 (b) ), has application to this dispute. Organization also argues that Carrier had a practice for a "number of years" of paying overtime to the involved position for work in excess of eight hours on regular work days.


Carrier contends no such overtime payments are due Claimants because the only payments over and above the monthly rate required are those described in Rule 8, Section 3(b) -for work on rest days. Carrier denies any practice of years of paying overtime to the involved position for work in excess of eight hours on regular work days; Carrier admits that it paid one of the Claimants such overtime from October, 1963, to the end of May, 1964 (the only period for which such payments were proved by Organization), but states that those payments were made in error and were stopped as soon as. the error was discovered.


It is our opinion that the amount of practice proved in this case by the Organization is not determinative of the intention of the parties to the Agreement. The dispute must be resolved by reference to the Agreement itself. Rule 5 reads:




(a) Except as otherwise provided in this agreement, time worked in excess of eight (8) hours on any day shall be considered overtime and paid for on the actual minute basis at time and one-half rate.



(c) Employes worked more than five days in a work week shall be paid one and one-half times the basic straight time rate for work on the sixth and seventh days of their work weeks, except where such work is performed by an employe due to moving from one assignment to another or to or from an extra or furloughed list, or where days off are being accumulated under paragraph (g-3) of Section 1 of Rule 8.


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(e) An employe notified or called to perform service or work not continuous with the regular work period shall be allowed a minimum of two (2) hours at overtime rate for two (2) hours, such excess time shall be paid for at the overtime rate on the minute basis. Each call to duty after being released shall be a separate call.


(f) An employe required to report for duty before his assigned starting time shall be paid two (2) hours at the overtime rate for two (2) hours' work or less and at the overtime rate thereafter on the minute basis for the time required to work in advance of his regular starting time.



and Rule 8, Section 3 (b) reads:

 "(b) Monthly Rated Employes.



The monthly rates payable to such employes effective September 1, 1949, shall be the rates in effect August 31, 1949 reduced by $2.43 per month.


Thereafter, to determine the straight time hourly rate for such employes divide the monthly rate by the hours comprehended in such rate effective September 1, 1949. To determine the daily rate multiply the straight time hourly rate by eight.


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Rule 8, Section 3 (b), acts as an exception to Rule 5, and it is the specific rule governing, among other things, compensation for work of monthly rated employes on days other than their assigned rest days; that is, service on such days "shall be compensated for under the rules applicable to such positions prior to September 1, 1949." The fact that the position was changed from monthly rated Agent to monthly rated Agent-Operator subsequent to September 1, 1949, does not mean, as implied by Organization, that it is not covered by Rule 8, Section 3 (b).


It is not disputed that prior to September 1, 1949, the rules provided for no extra payment to monthly rated positions for work in excess of eight hours on their regular work days. Thus, we must deny the claim.


FINDINGS: The Third Division of the Adjustment Board, 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











Dated at Chicago, Illinois, this 11th day of October 1968.

 Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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