Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32298
Docket No. TD-32331
97-3-95-3-166
The Third Division consisted of the regular members and in addition Referee
John C. Fletcher when award was rendered.
(American Train Dispatchers Department/International
( Brotherhood of Locomotive Engineers
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claims of Guaranteed Assigned Train Dispatchers Tardiff, Wiekel and
Foreman for time and one-half on various dates for service on their sixth
day in a workweek per Rule 11(a). (TD-409, 526 & 539)
Claim of regular assigned train dispatcher R. L. King for 12/21/93 at the
overtime rate when a junior employee was used in violation of Rule 5,
Section 2(e). (TD-540)"
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 were given due notice of hearing thereon.
Form 1 Award No. 32298
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Claimants Tardiff, Wiekel, and Foreman, are Guaranteed Assigned Train
Dispatchers, ("GATD") working under the March 7, 1985 GATD Agreement. During
the week ending June 29, 1993, Tardiff's employment schedule was:
Wednesday June 23rd. Off Sick paid 8-hrs Sick Leave.
Thursday June 24th Available no pay.
Friday June 25th Posted Gl paid 8-hrs straight time.
Saturday June 26th Worked paid 8-hrs straight time.
Sunday June 27th Worked paid 8-hrs straight time.
Monday June 28th Worked paid 8-hrs straight time.
Tuesday June 29th Worked paid 8-hrs straight time.
During the week ending December 21, 1993, Wiekel's employment schedule was:
Wednesday Dec. 15th Off Sick paid 8-hrs Sick Leave.
Thursday Dec. 16th Worked paid 8-hrs straight time.
Friday Dec. 17th Worked paid 8-hrs straight time.
Saturday Dec. 18th Worked paid 8-hrs straight time.
Sunday Dec. 19th Worked paid 8-hrs straight time.
Monday Dec. 20th Worked paid 8-hrs straight time.
Tuesday Dec. 21st Requested & Granted Hold-down on H-2.
During the week ending December 21, 1993, Foreman's employment schedule
was:
Wednesday Dec. 15th Worked paid 8-hrs straight time.
Thursday Dec. 16th Worked paid 8-hrs straight time.
Friday Dec. 17th Sick excludable - no pay.
Saturday Dec. 18th Sick paid 8-hrs Sick Leave.
Sunday Dec. 19th Sick paid 8-hrs Sick Leave.
Monday Dec. 20th Rest Day no pay.
Tuesday Dec. 21st Worked paid 8-hrs straight time.
Separate claims were filed for the difference between straight time pay and time
and one-half pay for each Claimant for service on the sixth day in their work weeks.
The Organization contends that Tardiff was eligible for payment at the overtime rate
for June 29, Wiekel for December 20, and Foreman for December 2 1, because they had
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already received 40-hours pay in that work week, and service on the sixth day in a work
week was required to be paid for at time and one-half rates. These claims were
consolidated into a single Submission for presentation to this Board.
The second issue before the Board concerns Claimant King. Here it is asserted
that he was denied an opportunity to work overtime on December 21, 1993, when
Foreman, a junior employee, was used on a sixth day in his work week. King's claim
was consolidated with the other three for presentation to this Board.
Carrier's defense is that time and one-half payments are not required to be paid
either Tardiff, Wiekel, or Foreman, by the specific language of Rule 11, and because
Foreman was properly worked at straight time on December 21, it was not necessary to
use King at time and one-half rates.
The third paragraph of Rule 11(a), the operative agreement provision controlling
resolution of this dispute, the specific rule authority mentioned in the Organization's
statement of claim provides:
"RULE 11 - REST DAYS
(a) ...
Extra or guaranteed assigned train dispatchers
who are required to work as train dispatcher in excess of five
(5) straight time days in a work week will be paid at the
overtime rate for work on either or both the sixth or seventh
days but shall not have the right to claim work on such sixth
or seventh days."
Neither Tardiff, Wiekel, or Foreman were required to work in excess of five
straight time days in the work weeks involved in their claims. Accordingly, their claims
for time and one-half are not supported by the explicit language of Rule 11.
Furthermore, the Organization has not pointed to specific language of any other
agreement provision that would support payment of time and one-half in the
circumstances that exist here. Instead, it has merely argued that the sick leave
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payments that Claimants received had ought to be treated the same as work for the
application of Rule 11. To embrace this notion it would be necessary for the Board to
substitute terms like "compensation" for "work" in the texture of the rule. The parties
that drafted the Agreement chose not to do so, and this Board is without authority to do
this for them. Accordingly, the claims of Tardiff, Wiekel, and Foreman are found to be
without merit. They will be denied.
The denial of Foreman's claim dictates that King's claim be denied as well.
Foreman was properly used at straight time rates on December 21, 1993. Because he
was properly used at straight time it was not necessary to offer the day to King at
overtime rates. King's claim is without merit. It will be denied.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 13th day of November 1997.