PARTIES TO DISPUTE.





Claim on behalf of Charles Harris for 100 hours at time and one-half rate and all applicable differentials at the prevailing Signal Inspector rate of $11.313 per hour, account junior employees working overtime on various dates October 8 through November 19, 1980, in violation of the current Signalmen's Agreement, particularly Rules 41 and 42.

Claim on behalf of Louis Costa for 62 hours at time and one-half rate and all applicable differentials at the prevailing Signalman rate of $10.997 per hour, account Junior employees working overtime on various dates November 5 through 21, 1980.

Claim on behalf of Rudolph Lentz for 44.5 hours at time and one-half rate and all applicable differentials at the prevailing Signalman rate of $10.997 per hour, account junior employees working overtime on various dates October 7 through 19, 1980.

Claim on behalf of Dominick Totondo for 11 hours at time and one-half rate account junior Signal Helper working overtime on various dates October 16 through 27, 1980.

Claim on behalf of Kenneth Thuilot for 3 hours at time and one-half rate account junior Signal Helpers working overtime on October 21, 1980."

 OPINION OF BOARD: Rules 41 and 42 of the Agreement are cited by the Brotherhood,
 as the basis for these claims. Rule 41 is the general rule
 dealing with overtime. Especially supportive of the claims, according to the
 Brotherhood, is Rule 42 which sets the conditions by which pre-determined overtime
 will be worked. All of the claims alkege the Carrier did not use senior gang
 employes for pre-determined overtime.
                      Docket Number SG-24369


The General Notice of October 2, 1980, on which the claims are based outlines operating regulations and conditions to prevail during a period of track renewal to be accomplished between October 13, 1980 and November 4, 1980 during regular working hours. The Notice specifies days and hours of its effectiveness but nowhere does it make any reference to overtime requirements. The Notice specified the track work would be done between 8:35 A.M. and 3:50 P.M., thus indicating overtime was not contemplated.

 The overtime claimed is not for regular amounts each day but varies substantially from day to day. Specific assignments of overtime were worked depending on the progress of the work. As the track work developed each day determinations were made on the spot toward the end of the 'shift the amount of signal overtime needed to render the signal system operable after work for that day was finished.

 Pre-determined means settled or decided in advance. Nothing in the General Notice supports the view that the overtime claimed was so anticipated. The provisions of Rule 42 are limited specifically to instances of pre-determined overtime and in the circumstances discussed above cannot be considered applicable.

 Rule 41(g) sets up conditions for the assignment of overtime as follows:

        "When it becomes necessary to assign an employee to an overtime assignment, a:ch employee shelf be selected based on the following considerations:


              1. Incumbent of the position for which the overtime is required."


In the claims considered here the overtime was worked by incumbents in finishing work pending near the end of the shift. The number of hours varied considerably each day from 1 to 4 hours. Variations occurred also as to the days of the week when overtime was worked, and in some cases overtime was worked on Sundays, not a regular work day. These facts demonstrate conclusively that in no manner can the overtime claimed be considered pre-determined as required by Rule 42.

 Award No. 37 of Public law Board No. 1660 sets forth the principles involved here as follows:

        "Absent a specific contract rule that provides that seniority shall be applied on an absolute basis, it was neither improper or unfair for the Carrier to allow the incumbent of the position to work overtime on his job rather than assign the overtime work to a senior employee who was the incumbent of a different position."


In the light of the evidence as reviewed above it is the Board's view that Rule 42 was not applicable in the assignment of overtime as covered by the five claims in question. On the contrary, the evidence fully supports
                      Award Number 24235 Page 3

                      Docket Number SG-24369


action of the Carrier in assigning the overtime in accordance with the requirements of Rule 41(g). For these reasons it is the determination of the Board that the claims be rejected.

 The above considerations apply generally to each and all of the five separate claims. However, in the claim of Charles Harris there was also a special consideration. He worked under a special agreement dated November 27, 1978 which set up certain conditions which took into account his epilepsy disability. He was assigned to Signal Gang 53 with the understanding he was precluded from any duties which involved operation of company vehicles or the performance of any critical non-interruptable tasks except under direct supervision with respect to the latter. The overtime claimed by Mr. Harris would have been such he would have been working alone or may have necessitated his operating a company vehicle, in direct violation of the Special Agreement of November 27, 1978.

 In the claim of Mr. Louis Costa, the circumstances were set forth in the Chief Engineer's letter of December 8, 1980, as follows:

        "rhe facts in this instance are that Mr. Costa was originally assigned to the crew working the welded rail job on the Montauk Branch, between Sayville and Babylon. His work habits were such that he was given another assignment where he could be more closely supervised. This was the result of Mr. Costa sitting in a vehicle during regular working hours rather than doing his assigned work."


The action by supervision in response to witnessing Mr. Costa absent from his assigned duties and sitting in a vehicle was not disciplinary in the sense of suspension or dismissal as provided in Rule 48. Rather, it was a logical supervisory step in placing him on a job where he could be more closely watched, a precautionary measure to prevent loafing on the job. It may be considered that this change in assignment was unfortunate for him in that it removed him from the welded rail job where he may have benefited from some of the overtime in question. But we must recognize that his transfer to another assignment was the result of his own misconduct; was well within supervisory authority and not in violation of Rule 48.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties
 to this dispute due notice of hearing thereon, and 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

        That the Agreement was not violated.

                      Award Number 24235 Page 4

                      Docket Number SG-24369

                      A W A R D


        Claim denied.


                            NATIONAL RAIIROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 By
 Rosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 14th day of March 1983.

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