Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31609
Docket No. CL-31073
96-3-93-3-16
The Third Division consisted
of
the regular members and in addition Referee
Dana E. Eischen when award was rendered.
(Transportation Communications International
( Union
PARTIES TO DISPUTE:
(Delaware and Hudson Railway Company
STATEMENT OF CLAIM: "Claim
of
the System Committee
of
the
Organization (GI-10914) that:
I. The following claim is hereby presented to the Company in behalf
of
Claimant D. Rabideau. (861-92DH014)
(a) The Carrier violated the Clerks' Rules Agreement effective
September 24, 1990, particularly Rule 5 and other rules, when it
failed to compensate Claimant Rabidesu at the overtime rate
of
pay
for February 7, 1992, when she covered Customer Service Clerk
position tour
of
duty 3:00 P.M. to 11:00 P.M, which was her second
tour of duty in a twenty-four hour period.
(b) Claimant Rabidesu worked 6:00 P.M. to 2:00 A.M. tour
on
February 7, 1992 and then worked 3:00 P.M. to 11:00
P.M. on
February 7,1992.
m
Claimant Rabidesu now be allowed eight (8) hours punitive pay
based on the pro-rata hourly rate of 513.64 for February 7; 1992
Ins the straight time pay the Carrier has already allowed her,
on
account of this violation.
(d) This claim has been presented in accordance with Rule 28-2
and
should be allowed.'
Form 1 Award No. 31609
Page 2 Docket No. CL-31073
96-3-93-3-16
11. Claim of the System Committee of the TCU that:
The following claim in hereby presented to the Company in behalf
of Claimant D. Rabideau. (861-92DH015)
(a) The Carrier violated the Clerks' Agreement effective September 16,
1990, particularly Rule 5 and other rules, when it failed to
compensate Claimant Rabideau at the overtime rate of pay for
February 15, 1992, when the Claimant covered position Customer
Service Clerk. 8:00 A.M. tour of duty, location CATS Department,
Clifton Park. NY, which was Claimant's second tour of duty in a
twenty-four hour period.
(b) Claimant worked 3:00 P.M. tour on February 24, 1992 and then
worked 8:00 A.M. tour on February 25, 1992, which was a 2nd tour
of duty in a twenty-four hour period.
m
Claimant Rabideau should now be allowed eight (8) hours punitive
pay based on the pro-rata hourly rate of 513.64 per hour for
February 15, 1992, less any straight time pay that the Carrier has
allowed for the involved second tour account of this violation.
(d) This claim has been presented in accordance with Rule 28-2 and
should be allowed.
I11. Claim of the System Committee of the TCU that:
The following claim is hereby presented to the Company in behalf of
Claimant P. Berg. (861-92DH017) .
(a) The Carrier violated the Clerks' Rules Agreement effective
September 24, 1990, particularly Rule 5 and other rules, when it
failed to compensate Claimant Berg at the overtime rate of pay for
March
2,1992, when the covered position Train Clerk, symbol M6,
tour of duty 7:00
A.M.
to 3:00
P.M., which was his
second tour of
duty in twenty-four hour period.
Form 1 Award No. 31609
Page 3 Docket No. CL-31073
96-3-93-3-16
(b) Claimant worked 11:00 P.M. to 7:00 A.M. tour on March 1, 1992
and then worked 7:00 A.M. to 3:00 P.M. on March 2, 1992.
® Claimant Berg now be allowed eight (8) hours punitive pay based
on the pro-rata hourly rate of $13.64 for March 2, 1992, less the
straight time pay the Carrier has already allowed, on account of
this violation.
(d) This claim has been presented in accordance with Rule 28-2 and
should be allowed."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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.
Each of the issues in this dispute centers on Claimants having worked two eight
hour tours in a 24 hour period. On February 6, 1992 Claimant Rabideau worked the
6:00 P.M. to 2:00 A.M. tour of duty. Ms. Rabideau then worked a second tour of duty,
3:00 P.M. to 11:00 P.M., on February 7, 1992. On February 24, Claimant Rabideau
worked the 3:00 P.M. to 11:00 PM tour, and then worked the 8:00 A.M. tour on
February 25,1992. Claimant Berg worked the 11:00 P.M. to 7:00 A.M. tour on March
1, and then worked 7:00 A.M. to 3:00 P.M. on March 2, 1992. Claimants were
compensated at the pro rata rate for each of the aforementioned tours.
Form 1 Award No. 31609
Page 4 Docket No. CI-31073
96-3-93-3-16
Citing Rules 4 and 5 of the Agreement, the Organization submitted a claim on
behalf of Claimants Berg and Rabideau, asserting that each should have been
compensated at the overtime rate for performing two tours of duty in a 24 hour period.
With respect to Rule 4, the Organization submitted that Claimants were "unassigned"
and that their workweek was "defined" by Rule 4.
Carrier denied the claim, maintaining that "Spare clerks are entitled to work at
straight time rate on each calendar day, not once in a 24-hour period." The
Organization responded to Carrier's denial, speaking to the "overwhelming weight of
authority rendered in various Awards, supporting Organization's position that a day
commences with the time of the preceding work assignment." In its final declination,
Carrier reiterated that: "If work is performed on two (2) separate calendar days,
regardless of the time frame between those two shifts, there is no provision for the
payment of overtime."
Rule 4 of the Agreement states, in pertinent part: "... A work week of 40 hours,
consisting of five days, of eight hours each ...." A "day" must be interpreted as the 24hour period
Law Board No. 2263, Award 48 and precedent cited therein. There is no dispute that
Claimants worked two tours of duty within the same 24 hour period. Therefore, they
are entitled to be compensated for the monetary difference between the pro rats rate
which they received, and the overtime rate to which each Claimant is entitled.
AWARD
Claim sustained.
Form 1 Award No. 31609
Page 5 Docket No. CL-31073
96-3-93-3-16
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 29th day of August 1996.