(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated the Agreement when, beginning March 5, 1984, it scheduled Mr. A. N. Plant to work ten (10) hours per day, four (4) days per week without allowing him three (3) consecutive rest days in each work week (System File NEC-BMWE-SD-941).

 (2) As a consequence of the aforesaid violation, Mr. A. N. Plant shall be allowed ten (10) hours of pay at his respective time and one-half rate for each rest day lost beginning March 10, 1984 and continuing until the violation is corrected."

 OPINION OF BOARD: On March 25, 1984, a Claim was filed with the Carrier on
 the grounds that it was in violation of the AMTRAK-BMWE
 Agreement and the Special Construction Gangs Agreement of November 3, 1976,
 when it failed to pay the Claimant at overtime rate on various rest days which
 he was required to work in March of 1984 and thereafter.













                        Docket Number MW-26722


Claim is for time and one-half for March 10, 11 and 23, 1984, and any days thereafter for which the Claimant was paid pro rata for being required to work on rest days. After the Claim was filed the Carrier determined, by correspondence dated July 19, 198 a mistake when it paid the Claimant time and one-half on March 10, 1984. The Carrier stated that it was taking measures to recoup such overpayment.

 The record shows that the Carrier is inconsistent, when it handled this case on property, relative to its understanding of when the new work week to which the Claimant was assigned, actually began. The Senior Director-Track informed the Organization by correspondence dated May 24, 1984, that the change of schedule became effective "...March 10, 1984." The Assistant Chief Engineer, on the other hand, states that the new work week was to begin on
 ...March 5, 1984." Despite this anomaly in the record before the Board the record does show that the Claimant was not given three rest days after his March 5-8, 1984 work week, and that he was not given three rest days after his March 17-20, 1984 work week. He was worked on March 10, March 11 and March 23, 1984, and was paid pro rata for those days (if, in fact, his March 10, 1984, overtime rate was rescinded). The Carrier was in error when it paid the Claimant pro rata on those dates. The reason for this has been clearly outlined by the Board in Thir used there applies here by reference.

 Since the Agreements were violated, the Claimant shall be paid the difference between the overtime and pro rata rates for March 10-11, and 23, 1984, if, in fact, his overtime rate had been reduced to pro rata for March 10, 1984. The parties are directed to do a joint check of the Carrier's records after these dates. If there are additional work weeks when the Claimant worked four, ten hour days followed by any three rest days on which he was obligated to work, and if he was not paid the overtime rate on these rest days, the Claimant shall be compensated accordingly at the difference between the overtime and pro rata rates.

        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.

                        Award Number 26522 Page 4

                        Docket Number MW-26722

                        A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


      Attest: fancy J. 9 v - Executive Secretary


      Dated at Chicago, Illinois, this 9th day of September 1987.

CARRIER MEMBERS' DISSENT

TO

AWARDS 26518, 26519, 26522 & 26523

DOCKET NOS. MW-26667, MW-26672, MW-26722 & MW-26724

Referee Suntrup,


In sustaining these claims, the Majority failed to accord sufficient weight to the fact that the November 3, 1976 Speciai Construction Gangs Agreement was specifically neg~:iated to grant the Carrier flexibility in changing workweeks to meet the unique operationa' requirements of its mechanized gangs and, in consideration for sucn flexibility, an incentive rate of 25~ per hour over and above the rate provided for the classification was granted.

    We dissent.


                              M. C. Lesnik


                                7W A d,4

                              M. W.vFingerhut


                              && a - ;,? -

                              J

                              R. L. Hicks


                              . V. Varga


                              . 4-E . Yost V