Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43625 Docket No. MW-42853 19-3-NRAB-00003-150057

The Third Division consisted of the regular members and in addition Referee Michael Capone when award was rendered.

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(National Railroad Passenger Corporation (AMTRAK)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier failed to assign Mr. V. Elias to overtime service on June 26, 2016 and instead assigned a junior employe (System Files NEC-BMWE-SD-5491 AMT).

(2) As a consequence of the violation referred to in Part (1) above, Claimant V. Elias must now be compensated for twelve (12) hours at his overtime rate of pay." "

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.

On July 5, 2016, the Claimant, Victor Elias, holding the position of Electric Traction Electrician Bonder (Commercial Drivers License "CDL"), submitted his claim, which was addressed together with similar claims during the on-property handling of the dispute. The Organization alleges that the Carrier violated Rule 55 - Preference for Overtime Work and the Supplemental Agreement, dated May 19, 1976, governing overtime in the Electric Traction Department when on June 26, 2016 it assigned overtime to an employee junior in seniority to the Claimant, who was available and qualified to work the assignment.

On November 21, 2016, the Carrier denied the claim asserting that the Claimant was not qualified and unavailable to work the overtime assignment subject to its Letter of Instruction 2015-3, dated August 21, 2015, (hereinafter referred to as the "Policy"), which it claims prohibits Engineering Department employees from working in excess of 14 hours in a 24-hour period. The Carrier further asserts that the Federal Motor Carrier Safety Regulation ("FMCSR"), Hours of Service, 49 CFR §395.3(a)(1), specifies that a driver required to have a CDL must have a minimum of 10 hours of rest between an overtime assignment and the start of the regular assignment. The Carrier asserts that the overtime assignment scheduled on the date in dispute was for a 7 p.m. to 7 a.m. shift. It argues that since the Claimant's regular shift was 7 a.m. to 3 p.m. the following day, the total hours worked would have exceeded the 14hour limit and violated federal regulations and therefore, rendered him unavailable.

The Organization argues that on previous occasions where the Claimant previously worked overtime when the FMCSR would have prevented him from working his regular assignment, the Carrier sent him home at the beginning of his regular assignment and compensated him with a "time paid not worked" or "TPNW" designation. It maintains that the Carrier should have provided the Claimant the same recourse instead of violating Rule 55.

The on-property record indicates that the Carrier denied subsequent appeals from the Organization and issued its final decision on October 19, 2017. The Organization rejected the Carrier's decision and filed its notice of intent with the Third Division. The claim is now properly before the Board for adjudication.

Relevant Contract Language

RULE 55 PREFERENCE FOR OVERTIME WORK, in pertinent part, reads as follows:

"(a)Employees will, if qualified and available, be given preference for overtime work, including calls, on work ordinarily and customarily performed by them, in order of their seniority.

• * *

(c) When it is necessary to call employees for service in advance of their bulletined working hours, or after men have been released from work commenced during bulletined hours, the same preference will be given on rest days as on other days to employees who are qualified, available and ordinarily and customarily perform the work."

Relevant Letters of Instruction

Letter of Instruction 2015-3, dated August 21, 2015, in pertinent part, reads as follows:

"Effective immediately to reduce the potential for placing our employees in situations where Fatigue could potentially limit one's ability to function safely both mentally and physically, working hours should be restricted to 14 hours per day. This includes working overtime."

Letter of Instruction 2013-03, dated December 5, 2013, in pertinent part, reads as follows:

"In order to provide a safe work environment for our employees working onorabouthigh-speedtracks,noemployee,agreementornon-agreement, should be required or allowed to work in excess of 16 hours in a 24-hour period, excluding travel time."

Relevant Federal Regulation, in pertinent part, reads as follows:

"49 CFR §395.3(a)(1) Maximum driving time for property-carrying vehicles

(a) Except as otherwise provided in §395.1, no motor carrier shall permit or require any driver used by it to drive a property-carrying commercial vehicle, nor shall any such driver drive a propertycarrying commercial vehicle . . . unless the driver complies with the following :

(1) Start of work shift. A driver may not drive without first taking 10 consecutive hours off duty;"

The record indicates that the dispute addressed here was progressed on the property together with other similar claims decided by the Board in Award Nos. NRAB 00003-180121, 00003-180122, and 00003-180123. Due to similar facts, rules, and evidence contained in the record, the decision here is in companion to the Findings rendered in those Awards, as they related to the application of the Carrier's Policy. Here, however, we find a factual distinction from the facts presented in those Awards, which we address below.

The Board finds that the claim must fail as a result of §395.3 of the FMCSR. The record confirms that assigning the Claimant the overtime on June 26, 2016 would have disqualified him and made him unavailable to work his regular assignment on June 27 as a result of the federal regulation, which requires 10 hours consecutive rest before beginning his shift.

The Board rejects the Organization's strenuous argument that the Carrier is obligated to permit theClaimant to worktheovertime and compensate himwith TPNW because it has done so previously. The Carrier is not required by the Agreement to compensate employees TPNW when they are prohibited by federal regulation to work their regular assignment. Basedon therecord presented,the Carrier's previous TPNW payments,whether by design or in error, does not constitute a mutually established past practice. The Carrier has the discretion to take such action, but is not mandated to do so.

In summary, we have reviewed and carefully weighed all arguments and evidence in the record and have found that it is not necessary to address each facet in these Findings. We find that the Organization has not provided sufficient evidence that the Carrier violated the Agreement.

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 17th day of May 2019.