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:
(Lake Terminal Railroad Company
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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
//,
'Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 23rd day of January 1992.