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 time the dispute arose, Claimants held five day per week Crane or Assistant Crane Operator positions. On April 2, 1992, the parties reached oral agreement for Crane Operator and Assistant Crane Operator positions with a four day workweek. That oral agreement was not reduced to writing until April 27 and was not signed by the Organization until May 1, 1992.
The four day per week positions were bulletined on May 21, 1992 as temporary positions (for approximately two months' duration). According to the Carrier, Claimants' five day positions were also abolished. The Carrier then held Claimant Samplaski in the four day position through June 22 and Claimant Hoover in that position through July 13, 1992, at which times Claimants were then allowed to exercise their seniority rights to other positions. In this claim, the Organization asserts that Claimants were improperly held in the four day positions and seeks an overtime differential on Claimants' behalf for hours Claimants worked on days after May 21, 1992 which otherwise were after eight hours in a workday and overtime for days Claimants had to work which otherwise would have been their days o8' based upon their five day positions.
"RULE 3
CONSIDERATION FOR POSITIONS
On May 21, 1992 the Carrier bulletined the four day positions, abolished Claimants' five day positions and at the same time held Claimants in the four day positions and did not permit Claimants to exercise their seniority until June 22, 1992 (Samplaski) and July 13, 1992 (Hoover). On the property, it was not disputed that Claimants did not desire to hold the four day positions, but desired to exercise their seniority to displace into other positions. As stated by the Organization on the property "[t)he claimants did not desire to become assigned to the crew in question ... At no time did they offer a request to fill the assignments pending bulletin award" [emphasis added]. The Carrier cannot now contest those assertions. By requiring that Claimants take the four day positions, the Carrier acted inconsistent with Rule 3 which allowed Claimants to exercise their seniority, particularly when the Carrier had abolished their positions.
Contrary to the Carrier's arguments, Rule 8(c) did not permit the Carrier to hold Claimants in the positions. Even if applicable to this case as the Carrier views the positions force assigned to Claimants as temporary until filled by bulletin, the Rule permits the Carrier to force assign employees without bulletin, provided the "senior, available, qualified employes, on proper request to the Division Engineer, will be given preference." As developed from the positions taken on the property, Claimants expressed no such request for preference. The record does not show that the Carrier Form 1 Award No. 32915
even attempted to get more junior employees to accept the positions before force assigning Claimants.
The Carrier's reliance upon Rule 8(e) also does not change the result in this case. The position on the property argued by the Carrier was that its actions were permitted by Rule 8(c). As stated by the Carrier on the property "[tlhe claimants positions were abolished and were then filled in accordance with Rule 8Uc" (emphasis added). Rule 8(e) was not specifically raised on the property. The Board cannot now consider new arguments not raised on the property.
On the merits, the Organization has therefore demonstrated a violation of the relevant Rules.
With respect to the remedy, based on what is before us, we are unable at this time to award the overtime relief sought by the Organization. As the Carrier points out, it is undisputed that Claimants did not suffer loss of hours as a result of being held in the positions after May 21, 1992. Claimants worked basic 40 hour weeks until they were permitted to exercise their seniority. What is not before us are the parties' specific overtime provisions. We do not have in this record whether overtime is paid after eight hours in a day or if paid for hours worked on scheduled off days irrespective of whether a 40 hour week has been worked. The existence of those provisions would be the only basis upon which the Organization's overtime remedy could be imposed. In accord with our discretion, the matter shall be remanded to the parties to compute Claimants' overtime entitlements, if any, based upon the appropriate language of the relevant Rules. The basis for the computation shall be that after May 21,1992, Claimants were required to work four, ten hour days (Friday through Monday) when they should have been working five, eight hour days (Monday through Friday). Claimants' overtime entitlements, if any, shall be based on those Rules. The measuring period for compensation under this Award shall be from May 22,1992 through the dates Claimants were permitted to exercise their seniority.
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.