Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29099
THIRD DIVISION Docket No. MS-29434
92-3-90-3-323
The Third Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.

(The United Steelworkers of America PARTIES TO DISPUTE:


STATEMENT OF CLAIM:

"Claim Number '1W-10-89: This grievance was filed by Etanislao Rivera Jr., Unit Griever, on behalf of M. of W. department employees R. Marrero #171 Section Gang Leader and R. Arroyo #123 Section Gang Burner. The claimants are grieving that the Company violated Rule 19: Overtime, section (h) and a 'past practice.' Details of the alleged rule violations are as follows: The above employees are claiming that on the date of October 31, 1989 they made a shift change when they went from the 7:00 am - 3:00 pm shift to the 3:00 pm - 11:00 pm shift. However, even though the Company has in the past paid the employees under this rule, they (Company) are now reversing their stand on this rule and declining to make any payments due the employees under this rule. Remedy sought for this violation; In addition to all other earnings and benefits, the above mentioned employees are requesting they be paid four (4) hours pay at their regular rate of pay."

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.

The essential facts, which are not in dispute, show that the Claimants worked a day shift from 7:00 A.M. until 3:00 P.M. and they worked the afternoon shift from 3:00 P.M. to 11:00 P.M. They claim four hours premium payment for the first afternoon shift. When so doing, the Claimants rely on past practice and Rule 19(h) which reads:
Form 1 Award No. 29099
Page 2 Docket No. MS-29434
92-3-90-3-323
"(h). Changing Shifts: Employees changed from one
shift to another will be paid overtime rates for
the first shift on each change. Employees working
two or more shifts on a new shift shall be con
sidered transferred. This will not apply when
shifts are exchanged at the request of the
employees involved."

We conclude from our review of the record that the Claimants' move to the afternoon shift was a voluntary act on their part. There is no evidence in the file to support the Organization's contention that in ,the past the Carrier has paid a four hour premium to employees who change shifts. Rule 19(h), in our judgment, is fairly straight-forward with respect to the question of shift change. We Given this language, the findings in past Awards which have addressed this same issue (see, for example, Second Division Awards 10819, 11750, 11944 and 3006), evidence that past practice supports the Carrier's positions and evidence that, in 1979, the to overtime payment, did not apply. We find that the Claim must be denied.








Attest: //,

      'Nancy J. -Executive Secretary


Dated at Chicago, Illinois, this 23rd day of January 1992.