(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Seaboard Coast Line Railroad Company

(1) Carrier violated the Agreement when on September 16, 18, 19, 20, 21, 23, 24, 25, October 3, 4, 5, 8, 9, 10, 11 and 12, 1974, it disallowed Agent J. E. Fagan at Piedmont, Alabama, assigned overtime while observing his vacation.

 (2) Carrier shall compensate Agent J. E. Fagan on the dates and in the amounts of overtime as follows:








OPINION OF BOARD: Claimant is an agent employed by the Seaboard Coast Line

Railroad Company and at the time of the claim was assigned at Piedmont, Alabama with hours of 7:15 a.m. to 4:15 P.m. Monday through

Friday.
 The claim is in two parts, both of which concern the same issue. One of the claims is for overtime on stipulated dates in September, 1974 and the other is for overtime for stipulated dates in October, 1974 and the schedule of them follows later in this opinion. For several months including the time of these claims, Carrier engaged in a rail-laying program between Roper, Alabama and Rockmart, Georgia on its Birmingham subdivision and during this period had two work trains in the area.

 The work trains were engaged in distributing material ahead of the railway gang, unloading welded rail and picking up material behind the rail gang. Work trains were on erratic schedules and at times one or both would tie up at a location other than Piedmont such as Ragland, Alabama, Cedartown, Georgia or Rockmart, Georgia where telegraphers covered under the agreement were assigned. At these points the work trains would be cleared by the onduty employes.
 Award Number 21474
 Docket Number CL-21319

 Page 2

 In addition to the regular railway program in this area, Carrier was also making rail tests with a Sperry Rail Car and it was necessary for the work trains to run in conjunction with the test car to replace any defective rails which were found.

 The Agent-Operator at Piedmont was directed on a daily basis by the Train Dispatcher whether or not to report early the following day to make a call to clear one or both of the work trains.

 On his return from vacation the Claimant requested overtime payment for calls made by the Agent relieving him while he was on vacation. The dates and number of hours claimed are stipulated in the statement of claim on the dates covered by this claim. The Agent's position at Piedmont was covered as follows with calls being made to clearthe work train as shown below:

18 19 20 21 Rest day 22

 23 24 25

 Oct. 3 Claimant on vacation (relief man worked)






9
 10
 11

 12 Rest day

 Claimant worked
 Claimant on vacation (relief man worked)
 Claimant worked

 Call made
 Call not made
 Call made

 _

 Call not made
 Call made
 Call made

Call made

 Call not made
 Call made Call made

 It is the position of the Organization and Claimant that under the contract and these circumstances the following section of the contract applies:

 "Section 7
Allowances for each day for which an employee is entitled to a vacation with pay will be calculated on the following basis:


            "(a) An employee having a regular assignment will be paid while on vacation the daily compensation paid by the carrier for such assignment.


            (b) An employee paid a daily rate to cover all services rendered, including overtime, shall have no deduction made from his established daily rate on account of vacation allowances made pursuant to this agreement.


            (c) An employee paid a weekly or monthly rate shall have no deductions made from his compensation on account of vacation allowances made pursuant to this agreement.


            (d) An employee not covered by paragraphs (a), (b) or (c) of this section will be paid on the basis of the average daily straight time compensation earned in the last pay period preceding the vacation during which he performed service."


Overtime payment was denied by the Carrier on the basis that this was not "regularly assigned overtime" and was only performed because of the work train being tied up at Piedmont, stating that on December 17, 191+1 the Carrier and the Organization together with other carriers and non operating organizations entered into a National Vacation Agreement. That vacation agreement has been amended numerous times to provide for additional vacation schedules, new qualification requirements, etc.

 Article 7(a) of the National Vacation Agreement stated how an employe would be compensated, but it needed clarification soon after it was made effective. On June 10, 1942, there was an agreement as to the interpretation of Section 7(a) between the participating parties to the National Agreement. That interpretation is as follows, Article 7(a) provides:

        "An employee having a regular assignment will be paid while on vacation the daily compensation paid by the carrier for such assignment."


        "This contemplates that an employee having a regular assignment will not be any better or worse off, while on vacation, as to the daily compensation paid by the carrier than if he had remained at work on such assignment, this not to include casual or unassigned overtime or amounts received from others than the employing carrier."


The question in this case,simply stated, is whether or not the overtime worked by the relief employe was "casual or unassigned overtime" or whether it was "assigned overtime."
                    Award Number 21474 page 1+

                    Docket Number CL-21319


        Both sides to the controversy cite a number of decisions regarding,

"assigned", "casual" and "unassigned" overtime and it is interesting to note
 that in this particular case both sides cite the same decisions each asking
 this Board fox an interpretation in their behalf. _

        The Awards jointly cited are Awards 4498, 4510, 5001, 14400,_16307

    -14T+42, among otfiers In addif6n, the Petitioner cites Awards 17630, 19656,

15404 and 14640 in which claims were granted on the basis that they are
 distinguishable from Third Division Award 4510 and the long list of cases
 which.follow it. One of the more recent, Award 16307, seems to this Board to
 correctly interpret the many awards on this subject which have prece in partic-ular 448, 752 and 14400. It would seem from this decision
 that the following, quoted from Award 5750, seems to set forth the criteria
 necessary to distinguish between "casual or unassigned overtime" and "regularly
 assigned overtime." These criteria for determining "casual or unassigned
 overtime" are:

        "1. The overtime was not a part of the regular assignment. It could be authorized only on instruction issued daily by the supervisor. If the work necessitating the overtime was not needed, then the overtime was not worked and nothing was said to the employee.


        2. The overtime was not bulletined.


        3. The overtime was worked only on those days when the employee was instructed so to work.


        7+. It was unknown from day to day whether the overtime would have to be worked at all the following day.


        5. The amount of. overtime was variable from day to day.


        6. The performance of the overtime and the amount of the overtime worked was governed exclusively by the day to day requirements of the service."


        The factual record in case indicates the criteria were met in this

case. The Claimant, to prevail, has the burden of proving the-overtime worked
 during the period of his vacation was other than "casual or unassigned";
 this he has failed to do. The overtime worked should not be included in
 Claimant's vacation pay.

        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;

                    Award Number 21474 Page 5

                    Docket Number CL-21319


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 not violated.


                    A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 31st day of March 1977.