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.
At the core of the issue in this case are Rules 3 and 45 of the current Agreement between the Parties. T'hose Rules read in pertinent part as follows:
On March 16, 1995, Carrier advertised the position of CTC Maintainer with headquarters at Uncoln, Nebraska (hump yards Carrier advertised the position with regular rat days of Tuesday and Wednesday. On March 30, 1995, the Organization submitted a claim in which it contended that Carrier had advertised the position with improper rest days. The claim was denied and subsequently progressed In the usual manner including conference on the property on October 26, 1995, after which it remained unresolved.
The issues in this case are not a matter of first impression. In a recent Award [Public Law Board No. 5565, Award 8 - Northeast Illinois Regional Commuter Railroad Corporation (METRA)J Brotherhood of Railroad Signalmen[ the Board considered a case nearly precisely on point with the one before this Board. In that instance the Board held:
In this case, the Carrier protested the applicability of Rules 3 and 45 throughout the processing of the eWnt. Not until a little more than two weeks before the conference on the property did the Carrier suggest that there was an operational necessity which required Carrier to assign other than Saturday or Sunday as a rest day/subject to call day. :1t no time during the processing of the claim did Carrier offer concrete evidence to support such an operational necessity.
Carrier has also protested that the monetary remedy sought is excessive. That argument has some validity. Had Claimant been properly assigned he would have received time and one-half for any Saturday or Sunday on which he worked. Thus, he Form 1 Award No. 32795
is entitled to be compensated at the time and one-half rate for each Saturday or Sunday he worked from the date he began his assignment in the position at issue. The Organization has failed to demonstrate, however, whether Claimant ever worked on a rest day, and if so, how often. Absent such a showing there is no basis upon which this Board may award compensation for those days.
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
THIRD DIVISION
By letter dated September 21, 1999, the Board was advised as follows by the Organization:
The Organization's challenge is that the Claimant is entitled to the overtime rate for the rest days he worked as regular positions. Because of the incorrect assignment, the Claimant worked various Saturdays or Sundays, but they were not, at the time, his rest days. The Board noted that the Carrier did violate the Agreement when it assigned the Claimant rest days of Tuesday and Wednesday, rather than Saturday and Sunday. While there is no evidence that he actually worked on either a Tuesday or Wednesday, while so assigned, the evidence is clear that, while so assigned he worked Saturdays and Sundays as part of his (incorrect) workweek responsibility.
Some confusion in this case seems to have arisen because the Board stated that we did not find that the Claimant had actually worked on either a Tuesday or Page 2 Serial No. 383
Wednesday while erroneously assigned. It is to those days the Board refers when it states that there is no evidence that the Claimant worked on his [incorrect] rest days, i.e., Tuesday and Wednesday.
A review of the record and prior Awards, however, suggests that some monetary penalty is, in fact, appropriate in this case. A long line of Awards on this and other Boards persuades the Board that a proper finding in this case is that, because he was erroneously assigned, the Claimant is entitled to the difference between the straight time he received for working Saturdays and Sundays and the punitive rate of pay he would have received if properly assigned. (See, for example, Award 2, Public Law Board No. 4716, Second Division Award 7041, and Public Law Board No. 4715, Award 2.) He is not, however, entitled to straight time for any Tuesday or Wednesday, on which he performed no service. Accordingly, that portion of the original claim remains denied.
Referee Elizabeth C. Wesman who sat with the Division as a neutral member when Award 32795 was adopted, also participated with the Division in making this Interpretation.