NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number TD-20514
William M. Edgett, Referee
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(Burlington Northern Inc.
STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association
that:
(a) The Burlington Northern, Inc. (hereinafter referred to
as "the Carrier"), violated the currently effective Agreement between
the parties, Article 2(b) thereof in particular, when it failed and refused to properly compensate C
L.
Stull at
time and one-half rate for services performed on December 26, 1971.
(b) Because of said violation, Carrier shall now be required
to compensate Claimant D.
L.
Stull the difference between one (1) day's
compensation at the pro-rata daily rate for Relief Chief Dispatcher and
time and one-half the daily rate applicable to the excepted Chief Dispatcher for December 26, 1971.<
OPINION OF BOARD: Claimant performed service on his regular assign
ment as Trick Dispatcher from 11:00 p.m. on Decem
ber 25, to 7:00 a. m. on December 26, 1971. After an interval of one
hour, he again performed service from 8:00 a.m. to 5:00 p.m. During
this second period of service, he worked as Relief Chief Dispatcher.,
The claim is for eight hours punitive pay at the Relief Chief
Dispatcher's rate. Carrier resists the claim on procedural grounds as
well as on the merits.
Carrier's procedural defense comes about as follows. The
claim form submitted by claimant on December 26, 1971 does not state
in specific terms the rate of pay claimed. The form has a column for
"occupation" and claimant entered his regular occupation, Dispatcher.
The form also contains a place to enter the reason for the claim and
here Claimant entered "worked 16 continuous hours". On the next day,
December 27, 1971, Carrier's superintendent replied: "acknowledge
receipt of your time report dated December 26, 1971 claiming eight hours
at Relief Chief Dispatcher's rate". Later, after the General Chairman
had appealed the denial of the claim, Carrier raised the issue of a
change in the claim. That issue must fail. The record shows that from
Carrier's first acknowledgement of the claim it understood that the claim
was for punitive pay at the rate of the Chief Dispatcher. There has been
no change in the claim. Carrier understood that it was for Chief Dispatcher's pay at the punitive ra
Award Number 20668 Page 2
Docket Number TD-20514
The next issue raised in defense of the claim is that a regularly assigned Assistant Chief Dispa
position is excepted from the agreement. However, the Board has held
that an employee who serves in relief on an excepted position is not removed from coverage of all ot
the other provisions is, of course, that more than eight hours in a day
will be considered overtime and paid as such.
Carrier bases its defense on its belief that:
"The exceptions clearly exclude compensation at the
overtime rate on any basis for any assigned train dispatcher, when used on the position of chief dis
Carrier arrived at the conclusion stated above as a result of
its interpretation of Article 2(e) which reads:
"* * * *An assigned train dispatcher required to work a
position other than the one he obtained in the exercise
of seniority, except an assigned train dispatcher who is
used on the position of chief dispatcher, or assistant
chief dispatcher shall be compensated therefore at the
overtime rate of the position worked; however, except
as provided in Article 18, no additional payment shall
be made to such train dispatcher due to not having worked
his regular assignment."
This Board has rejected an argument by this Carrier (Award 20017)
which attempted to deny the application of the punitive rate to service
as Chief Train Dispatcher on rest days. The reasoning of the Board is
that case was that Article 2(e) did not serve to modify the clear provisions of Rule 3(b) which prov
service.
The relationship of the applicable rules is identical in this
case. Rule 2(b) requires payment at the punitive rate for service in
excess of eight (8) hours on any day. That requirement is not modified
or negated by Rule 2(e). The claim must be sustained.
Award Number 20668 Page 3
Docket Number TD-20514
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.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:_
,qim/~
Executive Secretary
Dated at Chicago, Illinois, this 31st day of `larch 1975.
11 i