(a) Employees notified or called to perform work not continuous with the regular work period will be allowed a minimum of 2 hours and 40 minutes at the overtime rate for 2 hours and 40 minutes or less

Although subsequent negotiations between the parties converted monthly pay rates to hourly rates effective February 1, 1998, the change was without prejudice to the instant Claims and others similarly situated. In addition, their conversion agreement provided that "... other rules or practices that may presently apply to monthly-rated positions remain applicable ..." For purposes of this dispute, therefore, the instant Claimants were monthly rated machine operators who were required to keep track of their payroll time and submit it periodically via the Carrier's computer system.

The Carrier's use of electronic gathering of payroll data began in 1995. Neither party's submission, however, pinpoints the date of implementation. It is also undisputed that Claimants were not allowed time during regular working hours to compile and transmit the required payroll information.

In the Organization's view, the question in dispute is a relatively simple one. Are Claimants entitled to compensation for work they perform outside of their regularly assigned hours? The Organization contends that no Agreement rule exempts the disputed payroll work from the operation of Rules 39 and/or 40.

Carrier, on the other hand, contends the payroll work is a prior practice regarding service and compensation of monthly rated employees which continues under the effective Agreement. In its first and second responses to the Claims on the property', the Carrier contended that Rule 27 of the former Wabash agreement dated December I, 1963 remained in effect under the parties' July 1, 1986 combined Agreement. Carrier also contended that historically monthly rated employees have typically filed their payroll after normal hours. Finally, on the Jones Claim, Carrier contended the compensation sought was excessive. It made no such contention on the Adams Claim.

On the record before us, the Organization's evidence and contentions establish a prima facie case in support of the Claims. On the Adams Claim, the assertions of 10 minutes each on July 23 and August 14, 1997 and 20 minutes each on August 4 and 14, 1997 were not refuted by the Carrier during the on-property handling. For our purposes, such unrefuted assertions of material matters become established as fact in the record. We must accept, therefore, that Claimant Adams was required to spend those amounts of time on the dates -indicated to compile, gain access to the computer system, and submit his data. - Thus established as actual time parameters in the Adams Claim, they provide credibility for the 15, 20 arid 25 minute claims sought by Claimant Jones. In addition, it is undisputed that Claimants were required to expend these amounts of time outside of their regular working hours. Finally, Rule 39 (a-1) rather clearly appears to apply to such time periods.

In the second response on the Jones Claim, the Carrier official incorporated the contention by reference to the first response.

The same is true of the practice since electronic payroll data gathering has been in effect, According to the Organization, the Carrier has only recently disallowed submission during regular working hours. The change is what prompted the Claims. Carrier, on the other hand, maintains that employes have never been allowed work time to submit computerized data. Once again, we find ourselves with essentially offsetting positions unsupported by probative evidence. In addition, Carrier presumably has records that would resolve the conflict with convincing finality. Normally computer records capture the time of submission of payroll data. Such data would provide Carrier with a ready means to show whether employes were submitting the data inside or outside of their assigned working hours. Unfortunately, the instant Claim handling record before us does not address this aspect of the case whatsoever. Given that the computerized practice is also an affirmative defense raised by the Carrier, it has, once again, the burden of proof. Under the circumstances of the instant evidentiary records, we must find that Carrier's burden has not been met. Indeed, since Carrier is in possession of whatever computerized records exist and has not used them to prove its contention, the Organization is entitled to the adverse inference that the computer records would not support the Carrier's position on the electronic practice.

Carrier's other substantive defense consists of the contention that Rule 27 of the former 1963 Wabash agreement continued in effect after July 1, 1986. Our reading of old Rule 27 shows that monthly rated employes were, indeed, expected to perform unspecified duties incidental to their assignments outside of regular working hours without added compensation. Upon careful reading of the effective Agreement, however, we must conclude that old Rule 27 was not continued in effect. As the Organization noted in the on-property record, Rule 59(p) of the July 1, 1986 Agreement explicitly superseded the former 1963 Wabash agreement. Carrier's reliance upon Rule 59(n) to the contrary is not persuasive for two reasons. It reads as follows:

(n) All rates of pay in effect the effective date of this Agreement will remain unchanged until amended in accordance with the Railway Labor Act.

First, by its clear terms, paragraph (n) pertains only to rates of pay. It does not also encompass pay rules. Old Rule 27 is a pay rule and not a pay rate. Examination of the text of old Rule 27 shows the parties recognized a distinction between the monthly rate and pay rules such as old Rule 27. Second, old Rule 27 was no longer in effect on the effective date of the July 1, 1986 Agreement. It had been superseded by Rule 59(p). Thus, by the rather clear language of Rule 59, old Rule 27 was no longer operative after June 30, 1986. Moreover, to the extent that the Carrier contends the negotiating parties intended that old Rule 27 remain operative under the 1986 Agreement, the Carrier has, once again, the burden of proof to establish such negotiated intent. The record before us contains no evidence of negotiating history to support the contention. We are compelled to find, therefore, that old Rule 27 was superseded as the Organization maintains and did not continue in effect under the 1986 Agreement. Carrier has not sustained its burden of proof to the contrary.

For the foregoing reasons, we find the Carrier's insistence that employes must submit payroll data outside of regular working hours without proper compensation is a violation of the

Agreement as alleged in the Claims. Accordingly, Carrier is directed to either provide proper compensation per the Agreement or allow employes a reasonable amount of time during regular working hours to submit the requisite payroll data.

For the remedy on the instant Claims, we find that the Adams Claim must be sustained for 1 hour at his applicable overtime rate per Rule 39(a-1). Regarding the Jones' Claim, we do not find Claimant Jones to be eligible for a Rule 40 call for December 4, 1997. Nothing in the record shows that he was required to submit the data from home while on vacation. It appears, therefore, that submission on that date was pursuant to his personal choice and not Carrier's direction. There is no evidence he could not have submitted the requisite data in connection with his last regular work day. Consequently, Claimant Jones should be paid only the 20 minutes for that date at his overtime rate per Rule 39(a-1). The same is true for his claims of 25 minutes and 15 minutes for December 15 and 23, 1997.

erald E. Wallin, Chairman and Neutral Member