Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44069 Docket No. MW-43428
20-3-NRAB-00003-190583
The Third Division consisted of the regular members and in addition Referee Paul S. Betts when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(Union Pacific Railroad Company (Former Missouri Pacific) STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when Carrier required Mr. S. Forest and the members of Gang 9114 to perform work on November 22, 2014 but failed to compensate them appropriately for holiday pay and per diem in connection therewith (System File UP674BT14/1618449 MPR).
As a consequence of the violation referred to in Part (1) above, Claimant S. Forest and the members of Gang 9114 shall each ‘... be paid seven (7) hours of overtime each at a rate of one and one half (1) times per hour as well as an additional day of Per Diem at a rate of 118.47 per day, payable to each employee assigned to gang 9114 on November 21 and 22, 2014. ***’”
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.
The facts of this case are not in dispute. During the month of November 2014, System Gang 9114 was scheduled to work a compressed work schedule. The Gang was scheduled to work on November 8th through November 21st and were to observe the Thanksgiving holidays on November 22 and 23, 2014 (at the end of the compressed work period). The Gang began the compressed schedule working the hours of 8:00 AM to 6:00 PM. Beginning on November 18, and continuing through November 21, 2014, the working hours were changed to 8:00 PM to 7:00 AM. As a result, the Organization argues that the seven hours that were worked on November 22, 2014 (the hours from midnight to 7:00 AM) constitute work on the observed holiday and should therefore be paid at the overtime rate, while the Carrier argues that all hours (including the hours from midnight to 7:00 AM) are considered regular hours of the November 21, 2014 shift that began at 8:00 PM.
In summary, the Organization argues a) the Carrier violated the Agreement when it refused to compensate the Claimants at the overtime rate of pay for the Thanksgiving Day holiday hours worked from midnight to 7:00 AM on November 22, 2014, and b) the Carrier violated the Agreement when it failed to provide the Claimants with per diem for work performed on the Thanksgiving Day holiday of November 22, 2014.
In summary, the Carrier argues a) Gang 9114 was properly notified of the starting time change that occurred on November 18, 2014, and continued through November 21, 2014, b) the members of Gang 9114 were properly compensated for the month of November, 2014, and c) the Organization has failed to establish a violation of the Agreement and has failed to meet its burden of proof.
In the instant case, it is the Organization’s burden to establish a violation of the Agreement. The Organization must convince the Board that the observed holiday of November 22, 2014 is a fixed calendar day, beginning at 12 AM and continuing through 11:59 PM, that any hours worked during those hours must be paid at the overtime rate, and that the Claimants are entitled to an extra day of per diem because they worked during the November 22, 2014 calendar day.
After a thorough review of the record, the Board finds the Organization failed to establish an Agreement violation.
No Agreement language was provided to the Board specifying that holidays under a compressed work schedule were strictly defined as a calendar day beginning at 12 AM and continuing through 11:59 PM.
During Board discussion of this case, the Carrier cited Award No. 1 of Public Law Board 7736 as relevant here. In that Award, the Claimants were working a compressed work schedule consisting of ten-hour night shifts, beginning at 11:30 PM and ending at 10:00 AM the next day. In February 2014, the Claimants in that case received eight days of per diem for each eight days of work. However, the Claimants performed services from midnight to 10 a.m. on February 9, and February 23, 2014, but were not provided a per diem allowance for those days, which led to the filing of that claim. Because the Claimants worked on February 9 and 23, 2014 (the hours from midnight to 10:00 AM), the Organization argued the Claimants were entitled to an additional two days of per diem pay. The Carrier argued that the parties did not intend for an employee to receive nine days of per diem for eight days of work. The Carrier also argued that an employee is not entitled to two per diem payments for one shift, simply because it begins on one day and ends on another. In denying the claim, the Board reasoned the Claimants worked no more than their regularly scheduled days. The Board did not agree that the parties intended for an employee performing eight days of work to receive nine days of per diem, even when the eight days of work occur over nine calendar days. Although Award No. 1 of Public Law Board 7736 relates to payment of per diem in the event of a shift starting on one day and spanning into the next, the Board finds the reasoning useful here.
The Carrier has a historical practice whereby employees regularly start their shift on one day and end the shift on the next day. At the end of a compressed half schedule, shift hours on the last workday of the half that occur past midnight and fall on a “rest day” have historically been considered a continuation of the regular shift and have not been paid at the overtime rate.
In the instant case, just because the regular shift hours spanned two days does not mean that the hours on the second day should be considered something other than hours worked on the employees’ regularly assigned shift. Here, the hours worked on November 22, 2014 were a continuation of the regular shift that started on November 21, 2014.
Given the factors discussed above, the Board must deny the claim.
Although the Board may not have repeated every item of documentary evidence, nor all the arguments presented, we have considered all the relevant evidence and arguments presented in rendering this Award.
Claim denied.
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 11th day of August 2020.