NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-21331
Irwin M. Lieberman, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Seaboard Coast Line Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused
to compensate Bridge Tender G. L. Pike in accordance with the Call Rule
(Rule 26) for the services he performed not continuous with his regular work
period on August 17, 18, 20, 21, 24, 28, 29, 30, 31, September 3, 5, 7, 10,
11, 12, 14, 19, 25, 26, 27, October. 1, 3, 5, 9, 11, 16, 19, 22, 23, 27, 29,
November 9, 10, 27, 30, December 11, 14, 17, 21, 1973, January 3, 9, 11, 25
and 31, 1974 (System Files 12-26 (74-3), 12-26-(74-5), 12-26 (74-6), 12-26
(74-7), 12-26 (74-8)).
(2) Bridge Tender G. L. Pike be allowed the difference between
the amount he received and the amount he should have received under the Dro-
visions of the Call Rule for the services he performed on the dates referred
to in Part (1) hereof.
OPINION OF
BOARD: Claimant is employed as a Bridgetender with assigned hours
of 8:30 A.M. to 11:00 A.M. and from 12:30 P.M. to 6:00
P.M., Monday through Friday. His lunch period is from 11:00 A.M. to 12:30
P.M. Claimant is frequently called upon to operate the bridge for the passage
of boats outside of his regularly assigned hours and during his lunch period;
it is for these hours that this claim is filed since there is a dispute as to
the proper compensation.
The applicable rules involved herein provide:
"RULE 26 - CALL RULE
Employes notified or called to perform work not continuous
with the regular work period will be allowed a minimum of two
(2) hours and forty (40) minutes at time and one-half rate,
and if held on duty in excess of two (2) hours and forty (40)
minutes, time and one-half will be allowed on the minute basis."
"RULE 27 - OVERTIME
Section 1 - Time worked following and continuous with the
regular eight (8) hour work period shall be computed on
the actual minute basis and paid for at time and one-half
rates, with double time computed on the actual minute basis
after sixteen (16) continuous hours of work in any twenty-four
(24) hour period computed from starting time of the employe's
regular shift.
Award Number 21352 Page 2
Docket Number MW-21331.
"Section 2 - Time worked continuous with and in advance of the
regular eight (8) hour work period: (a) if six (6) hours or
less, will be paid at time.and one-half rate until the beginning
of the regular work period, and then at the straight-time rate
during the regular eight (8) hour work period; (b) if in excess
of six (6) hours, the time and one-half rate will apply until
the double-time rate as provided for in Section 3 of this Rule
becomes applicable, or released for eight (8) hours or more.
Such release, upon completion of six (6) hours or more actual
work, will not constitute a violation of Section 6 of this Rule.
x
Section 4 -.
There shall be no overtime on overtime; neither shall overtime
hours paid for, other than hours not in excess of eight paid
for at overtime rates on holidays or for changing shifts, be
utilized in computing the 40 hours per week, nor shall time
paid for in the nature of arbitraries or special allowances
such as attending court, deadheading, travel time, etc,. be
utilized for this purpose, except when such payments apply
during assigned working hours in lieu of pay for such hours, or
where such time is now included under existing rules in computations leading to overtime."
This is the third dispute before this Board between these same parties involving payments to bri
The first dispute involved service during the meal period, Award 14070, in
which we found that the employe should receive a call for such work, contrary to Carrier's position.
situation in which Claimant responded to a
"ca1I"
for service within an hour
and a half of his regular starting time. In that case Carrier argued that
Claimant was only entitled to overtime pay for the time period prior to
the regular starting time. We held that a call should be paid and carrier
dissented vigorously and now alleges that the decision in question was
palpably erroneous. The current dispute involves a series of claims which
fall into two categories: instances in which Claimant was called upon to
open the bridge less than two hours and forty minutes prior to the regular
starting time (identical to the facts in Award 18090); and secondly, instances
in which he was called upon to open the bridge more than once during the same
two hour and forty minute period. The second situation is exemplified by the
claims for August 31st when Claimant was called upon to open the bridge from
12:35 A.M. to 12:55 A.M. and again from 2:08 A.M. to 2:25 A.M. In that
instance Petitioner seeks two calls and Carrier insists that one call is all
that is required.
Award Number 21352 Page 3
Docket Number MW-21331
Carrier argues that Award 18090 was in palpable error in sustaining
a claim for a call when the claimant had been instructed to remain on duty
under pay in accordance with Rule 27 Section 2. Carrier also contends that
the agreement contains no provisions requiring an automatic release from duty
each time a boat passage has been completed nor does it require a payment of
additional calls within the same two hour and forty minute period. Carrier
relies in part on the principle that it has the right to direct its work
forces as long as it is in conformity with the law and the agreement. Carrier
insists that the payment of a call within a call would be in violation of the
agreement proviso contained in Rule 27 prohibiting overtime on overtime. The
Carrier's position can be summed up by the Assistant Vice President-Engineering's
comments:
"I am sure you understand that when a bridgetender is called
he can be held for the full two hours and forty minutes, and
that we do not intend to pay additional calls within this period
should a second or third boat appear. We have not up to this
time strictly required a bridgetender to stay on the bridge during the full two hours and forty minu
nature continue, we will be forced to issue such inst·,-t:cr_o~==,
Carrier also asserts that it issued standing instructions concerii_ig this type
of service by bridgetenders and further it has every right to expect senTi=e
for all time for which it pays. Carrier also cites two awards, 6497 and
13980 upon which it relies in part. They will be discussed hereinafter.
Petitioner argues that the-issues involved in this dispute have
been disposed of by this Board in the two awards cited first above. Further,
it is contended that the conditions set forth in the Call Rule and Overtime
Rule are clearly distinguishable and in all the instances herein the Call
Rule is applicable. Petitioner also asserts that there are no contrary past
practices or instructions issued to the bridgetenders, contrary to Carrier's
contention.
First, with respect to the two awards cited in particular by Carrier, both are distinguishable from
that the completion of a task which an employe has been instructed to perform
does not automatically release him from duty, also states that there were
standing instructions for the claimant to report to work early, as distinct
from the facts herein. Similarly in Award 13980 Claimant was instructed to
stay on the job
"...
and protect the interlocking plant."
We find no facts in the record to support Carrier's assertion that
there were standing instructions to bridgetenders to remain on duty prior to
their regular starting time and similarly no evidence with respect to any
practices prevalent on the property. There was an "interpretation" of the
rules in question issued by Carrier dated January 17, 1974 which cannot be
construed to constitute an instruction. The interpretation itself is a unilateral pronouncement of q
Award Number 21352 Page 4
Docket Number MW-21331
In our judgment, the Call Rule is clearly applicable to the circumstances involved herein. Calls
unpredictable events - outside of regularly assigned hours, as distinct from
overtime which is interpreted by the Agreement herein to be for time worked
continuous with (both before and after) the regular eight hour assigned work
period. With respect to the "calls" which Carrier desires to pay overtime
for, immediately prior to the starting time
of
Claimant, there is no indication in the record that Carrier required Claimant to remain o
entire period up to his regular starting time. On the contrary, it is evident
that Claimant returned to his home after performing the required work. It
would indeed be difficult to ignore the distinction of continuous work versus
what is evidently the fact herein. Hence, that situation warrants a call
pursuant to Rule 26.
With respect to the alleged pyramiding of overtime, we also find that
Carrier is in error. We need not dwell upon the historic reasons for the provisions for minimum call
leaving their homes at the behest of employers at all hours except to indicate
that such provisions have long been accepted by this industry. There is neither
a literal nor philosphic reason for the exceptions to the rule desirec by Carrier in this dispute. A
within our province. Carrier may of course seek changes in the rule or requircontinuous service for
:N
must sustain the claim based on the clear language of the Rule in addition to
the prior determinations.
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 ,Tune 21, 1934;
That this Division of the Adjustment Board has jurisdiction over
the dispute involved herein; and
That the Agreement was violated.
Claim sustained.
A BY
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 16th day of
NATIONAL RAILROAD ADJUSTMENT BOARD
Order of Third Division
December 1976.