(Terminal Railroad Association of St. Louis

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Terminal Railroad Association of St. Louis (TRRA ):

Claim on behalf of C. E. Satterfield for payment of two hours and 40 minutes at the time and one-half rate, account Carrier violated the current Signalmen's Agreement. particularly Article V, Section 1, when it called a junior employee instead of the Claimant to perform overtime work on January 8, 1995. General Chairman's File No. 95-47-A-S. BRS File Case No. 9759-TRRA."

Parties to said dispute were given due notice of hearing thereon.

At 1:20 A.M. on January 8, 1995, in response to a problem with a signal system, Carrier called out second shift Signal Maintainer Paul Anderson on an overtime basis to repair a broken wire. Anderson, who had been released at midnight after his shift on January 7, was junior to Claimant Satterfield, a first shift employee on his regular day o ff.

The Organization maintains that the Claimant was available for overtime and should have been called. Carrier's action, it argues, violated the general seniority provisions of the Signalman's Agreement, which read:

"ARTICLE V.

Seniority

Section 1. Seniority shall consist of rights based on relative length of service of employees as hereinafter provided and shall extend over the entire property of the Terminal Railroad Association of St. Louis, including leased and operated lines."

In response. the Carrier asserts that the controlling rule here is found in the following provisions. excerpted below:

"ARTICLE II

Ilours of Service

Section 8 (a) Overtime Provisions - Work in excess of 4 straight time hours

in any workweek shall be paid for at one and one-half times the basic

straight time rate except where such work is performed by an employs due

to moving from one assignment to another or to or from a furloughed list.

or where days off are being accumulated under Paragraph (g)of Article I 11.

(b) Work performed by employes on their assigned rest days . . . shall be paid for at the applicable punitive rate.

Section 9. The hourly rates named herein are for an eight (8) hour day. .III service performed outside of the regularly established working period shall be paid for as follows.

Overtime hours either prior or to [sicl continuous with regular working period shall be computed on the actual minute basis and paid for at the rate of time and one-half...

Section 10. Employes released from duty and notified or called to perform service outside of and not continuous with regular working hours will be paid a minimum allowance of two hours and forty minutes at the time and one-half rate ... ."

Carrier contends that for many years prior to the submission of this claim, its normal practice had been to cover a vacant third shift position by working the second shift employee from midnight to 4:00 A.M., to a maximum of four hours, and then bringing in the first shift Maintainer four hours early at 4:00 A.M. It argues that it relied on this practice when it called out second shift Maintainer Anderson at 1:20 A.M. rather than Claimant, a first shift employee on a normal rest day. In sum, Carrier insists that covering the trouble call in such manner violated neither the general seniority Rules nor the hours of service provisions, and that the Organization's position in this dispute represents a sudden and unannounced change from a practice that had worked well and in which it had long acquiesced.

From the Board's examination of the Rules relied upon by both the Carrier and the Organization. we conclude that none directly addresses the situation which confronted them on.lanuary 8, 1995. The Rules of service provisions clearly contemplate the calling of employees outside their regular hours for overtime assignments. but do not establish a system for distributing overtime. Nor do the general seniority Rules provide any explicit guidelines.

The Organization cites Third Division Award 30833 in support of its position. There the Board rejected a carrier's attempt to rely on the absence of specific restrictions in the agreement to justify its covering overtime out of seniority order. In that case, the Board's determination rested upon an express finding that there %s as no showing of "... an existing practice to disregard seniority in overtime."

ward 30833 professes unarguable principles. Seniority has been recognized as the life blood of the agreement for far too long to need elaboration here. Even in the absence of specific rules. it is the cornerstone of collective bargaining, and it normally governs access to premium assignments. But in this instance the settled exception acknowledged by Award 30833 is in play. Carrier asserts that there is an established

local practice of covering overtime as it did in this instance. On the basis of this record, and in the absence of any explicit rule governing the issue, if that contention is fact the Board would have an overriding reason for disregarding seniority. Conversely, if the Organization's position is credited, the senior employee was entitled to the overtime. Both arguments obviously call for the making of a record, and for scrutiny of it, for past practice defenses are often burdened with issues of knowledge, acquiescence, and other concerns.

This Board cannot resolve this conflict on the record before us. The Organization bears the burden of rebutting Carrier's assertion that the Agreement has been applied historically as urged. Assuredly, if Carrier's normal practice has been to call senior personnel for duty outside of and not continuous with regular working hours that fact can be documented. In the meantime, Carrier's assertion remains unrefuted. With the fact conflict unsettled on the property, and consistent with long standing precedent in this Division, therefore, the claim must be dismissed without prejudice.

AWARD