C:\MYDOCU~1\SCHEDU~2\3-27593.htm

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27593 THIRD DIVISION Docket No. MW-27029 88-3-86-3-69 The Third Division consisted of the regular members and in addition Referee Herbert L. Marx, Jr. when award was rendered. (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

(Union Pacific Railroad Company

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that: (1) The Carrier violated the Agreement when it assigned junior B&B Carpenters R. E. Portis, T. M. Hauptman, T. G. Bowley and M. D. Minor to perform overtime service on October 6, 1984 instead of Foster, R. S. Lamb and J. C. Stinn who were senior, available and willing to perform that service (System File M-90/013-210-35). (2) Claimants S. M. Foster, R. S. Lamb and J. C. Stinn shall each be allowed seven (7) hours of pay at their respective time and one-half rates. FINDINGS: The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that: The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934. This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

This dispute concerns carpentry work on an unassigned overtime day (Saturday, October 6, 1984) in Carrier's Omaha headquarters. Such work was assigned to four employees of B&B Gang 1423. Three of the employees so assigned were junior to t There is no dispute that the Claimants were available for the overtime work. The Organization argues that the Claimants were entitled to be called in place of three junior employees based on their seniority rights. (A fourth employee who worked was also cited in the Claim, but he was senior to one of the Claimants.) Absent other considerations, there is no doubt as to the Claimants' entitlement to be called for the work in question. This is true despite the Form 1 Award No. 27593 Page 2 Docket No. MW-27029 88-3-86-3-69 absence of a rule specifying that employees should be called in seniority order for overtime work. The Organization cites numerous Awards to this effect, including Third Divi 21421 states, as an example:

"The Awards of this Division are persuasive to the effect overtime of a given class must be assigned on the basis of seniority even where there are no specific rules in the Agreement covering the situation."

The above reasoning does not apply, of course, where there are rules governing overtime assignment on a basis other than seniority. The Carrier here relies on two such rules, as follows:

RULE 26

"(h) WORK ON UNASSIGNED DAYS. Where work is required by the Company to be performed on a day which is-not a part of any assignment, it may be performed by an available extra or unassigned employe who will otherwis (40) hours of work that week; in all other cases by the regular employe." RULE 35 "(k) PERFORMANCE. In the performance of overtime work on unassigned days employes regularly assigned to work in a higher seniority class will not be permitted to displace employes regularly assigned to work in a lo It is the Carrier's contention that these Rules required the assignment of the employees who wor states that these employees were employed on the headquarters' remodeling assignment "from the start positions and thus, under Rule 35(k), were not entitled to the work. The Organization contends that the three Claimants worked as Carpenters on the day preceding the overtime. This conflict in fact is not resolved for the Board. The Board is not convinced by the Carrier's Interpretation of Rule 26(h). "Regular" employee is not defined here as the employee assigned to a particular task immediately preceding overtime opportunity; rather, it simply distinguishes such employee from an "extra or unassigned employee." As to the Claimants being "regularly assigned to work in a higher seniority class" (Rule 35(k)), the Organization contends without contradiction that the Claimants were not "regularly" assigned to the "higher" positions by bulletin but retained their standing in G Organization claims, the Claimants worked in their bulletined positions immediately preceding the ov Form 1 Award No. 27593 Page 3 Docket No. MW-27029 88-3-86-3-69 The Carrier's argument that employees assigned to the remodeling work should continue to perform such work on overtime, in preference to other available employees in the The Carrier also disputes the propriety of payment at the punitive rate. In keeping with the predominant view of this Division and in the absence of demonstrated practice to the contrary on the property, the Claim will be sustained as presented. A W A R D Claim sustained. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest: Nancy J. -.Executive Secretary Dated at Chicago, Illinois this 27th day of October 1988.