Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27751
THIRD DIVISION Docket No. MW-26876
89-3-85-3-651
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation
(Amtrak) - Northeast Corridor
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it compensated Messrs.
G. Young, D. F. Williams, W. Patton, W. G. Crook, W. L. Williams, A. Cunha, E.
T. Dickson and G. C. McIntosh at the straight time rate instead of the time
and one-half rate for the ten (10) hours of work they each performed on the
Panel Renewal System on both March 11 and 23, 1984 (System File NEC-BMWESD-1049).
(2) As a consequence of the afore-said violation, Claimants G.
Young, D. F. Williams, W. Patton, W. G. Crook, W. L. Williams, A. Cunha, E. T.
Dickson and G. C. McIntosh shall each be allowed the difference between their
respective straight time and time and one-half rates of pay for twenty (20)
hours."
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.
Claimants in this case were all regularly assigned to the Panel
Renewal System Unit at the time of the instant dispute. When this unit was
established, employees assigned thereto worked ten hours per day, Monday
through Thursday, with Friday, Saturday and Sunday as designated rest days.
On February 29, 1984, Carrier issued a new work schedule for the PRS
Unit which, according to the Organization, required Claimants to work as follows:
Form 1 Award No. 27751
Page 2 Docket No. MW-26876
89-3-85-3-651
Date Work Schedule Rate of Pay
March 5, Monday work 10 hours straight time
March 6, Tuesday work 10 hours straight time
March 7, Wednesday work 10 hours straight time
March 8, Thursday work 10 hours straight time
March 9, Friday rest day - -
March 10, Saturday work 10 hours time and one-half
March 11, Sunday work 10 hours straight time
March 12, Monday work 10 hours straight time
March 13, Tuesday work 10 hours straight time
March 14, Wednesday rest day - -
March 15, Thursday rest day - -
March 16, Friday rest day - -
March 17, Saturday work 10 hours straight time
March 18, Sunday work 10 hours straight time
March 19, Monday work 10 hours straight time
March 20, Tuesday work 10 hours straight time
March 21, Wednesday rest day - -
March 22, Thursday rest day - -
March 23, Friday work 10 hours straight time"
The Organization maintains that Claimants are entitled to pay at
their time and one-half rate for the work they were scheduled to perform on
Sunday, March 11 and Friday, March 23, 1984. We agree with the Organization's
position, in part. The relevant rules are as follows:
"RULE 40
BEGINNING OF WORK WEEK
The term 'work week' for regularly assigned employees shall mean a week beginning on the first
day on which the assignment is bulletined to work,
and for unassigned employes shall mean a period of
seven consecutive days, starting with Monday.
RULE 90-A
TRACK UNITS - SOUTHERN DISTRICT
V. WORK WEEK
The normal work week for employes assigned to positions in units established pursuant to this Ag
straight time hours each, with two (2) consecutive
rest days. An original determination of whether a
unit is to be established for five (5) or four (4)
ten (10) hour work days with three (3) consecutive
rest days shall be made in the notice given to the
General Chairman pursuant to II above. When it is
Form 1 Award No. 27751
Page 3 Docket No. MW-26876
89-3-85-3-651
known in advance that a five (5) day week will not
be practicable and feasible for the duration of the
unit, those times will be specified in such notice.
At all other times, the Chief Engineer may change
the work week from five (5) days to four (4) days,
or vice versa, upon at least five (5) days written
notice to the involved employes and the General
Chairman, except that such changes may be made in
less than five (5) days upon concurrence of the
General Chairman.
PARAGRAPH 1(D):
A work week consisting of four ten-hour work days
may be established with any three consecutive days
as rest days.
RULE 45
TIME
WORKED IN EXCESS OF 40 STRAIGHT
TIME
HOURS IN
ANY WORK WEEK
Time worked in excess of 40 straight time hours in
any work week, shall be paid at time and one-half
rates, except where such work is performed by an
employe due to moving from one assignment to
another, or where days off are being accumulated in
accordance with the provisions of Rule 39."
From the above-quoted rules, it is clear that the Carrier was allowed
to establish a workweek consisting of four (4) ten (10) hour workdays followed
by three (3) rest days. It is also not disputed, in this particular claim,
that the Carrier was permitted to change the rest days of the Claimants' assignments. However, it is
(7) day period beginning on the first day on which a particular assignment is
bulletined to work and consists of a specific number of workdays followed by a
specified number of rest days. In this case the Claimants were initially assigned to positions with
Friday, Saturday and Sunday designated as rest days. Hence, when the Claimants began their workweek
complete that workweek, including the observation of the designated rest days,
i.e., Friday, Saturday and Sunday, March 10, 11, and 12, 1984, respectively.
The same principle applied to each of the successive workweeks in March as the
Carrier changed the Claimants' assignments. When the Carrier required the
Claimants to work on any of the three (3) rest days following each forty (40)
hour workweek assignment, they were entitled to receive compensation at the
overtime rate for the work performed on those days.
Our conclusions in this regard are bolstered by a series of Awards
decided by this Board, all involving claims similar to the one herein. Illustrative of those cases i
stated:
Form 1 Award No. 27751
Page 4 Docket No. MW-26876
89-3-85-3-651
"A review of the record before the Board warrants
the conclusion that the Carrier is in error in the
manner in which it is interpreting the operant
Agreement and the Special Construction Gangs Agree
ment. Rule 40 unambiguously defines a 'work week'
as one beginning on the first day on which an
assignment is bulletined to work. Paragraph 1(d)
of the Special Construction Gangs Agreement clearly
states that such work week can consist of 4 ten-
hour work days with any 3 '...consecutive days as
rest days.' Rule 90(a) permits the same type of
arrangement. The Carrier effectively bulletined 4
day work weeks. Rule 45 states that time worked in
excess of 40 straight time hours in any work week
will be paid at the time and one-half rate. Noth
ing in Rule 32 nullifies the mandates found in the
Rules cited in the foregoing. Further, this latter
Rule provides that the guidance found therein shall
hold '...(e)xcept as otherwise provided in this
Agreement
....'
The burden of proof has suffi
ciently been met by the organization as moving
party in the instant case."
Also see Third Division Awards 26519, 26522, and 26523.
Based on the foregoing, we conclude that Carrier erred in its application of the schedule Agreem
the property that in spite of the February 29, 1984 PRS schedule, payroll
records revealed that none of the Claimants performed service on March 11,
1984, and Claimant Crook was on vacation that day. In addition, Claimant
Young took a voluntary absence on March 23, 1984. Therefore, Claimants, with
the exception of Claimant Young, shall be paid the difference between the overtime and pro rata rate
A WAR D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. v - Executive Secretary
Dated at Chicago, Illinois, this 2nd day of March 1989.