' -
NATIONAL MEDIATION BOARD
SPECIAL BOARD OF ADJUSTMENT
NO. 1048
JOHN
C.
FLETCHER, CHAIRMAN & NEUTRAL MEMBER
E. N. JACOBS, JR., CARRIER MEMBER
RICHARD A. LAU, ORGANIZATION MEMBER
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and'
NORFOLK SOUTHERN RAILWAY COMPANY
Award No. 69
Case No. 69
Date of Hearing - October 17, 1996
Date of Award -April 21, 1997
Statement of Claim
:
1. The Carrier violated the Agreement when it failed to
properly compensate Machine Operator R. B. Ratliff for overtime
service performed on June 18, 23, 24, 28, 29, 30 and July 1, 1995.
2. As a consequence of the violation referred to in Part 1
above, Machine. Operator R. B. Ratliff shall now be allowed eleven
(11) hours pay at the bulldozer operator's double time rate and
thirteen (13) hours pay at the half-time rate to equal the
bulldozer operator's double time rate he should have received.
(Carrier File MW-PAB-1995-1)
FINDINGS
:
Special Board of Adjustment No. 1048, upon the whole record and all of
the evidence, finds and holds that the Employee(s) and the Carrier are
employee and carrier within the meaning of the Railway Labor Act, as
amended; and, that the Board has jurisdiction over the dispute(s) herein; and,
that the parties to the dispute(s) were given due notice of the hearing thereon
and did participate therein.
On the dates involved in this claim, Claimant was assigned as a bulldozer
operator with a 10-hour day, Monday-Thursday work week, with Fridays,
Saturdays, and Sundays as rest days. Due to heavy rain and severe flooding i n
central Virginia, Claimant was required.to work overtime on the seven days
noted in the Statement of Claim. When completing time slips for the overtime
work, Claimant requested payment at double time for those. hours beyond 16hours on duty. Double time payment was denied by Carrier, on the basis that
the "time worked was not performed continuous with a regular assigned work
period."
Rule 39(a) of the Agreement is the operative rule in this matter. I n
pertinent part, that rule provides:
[T]ime worked preceding or following and continuous with
a regularly assigned eight-hour work period shall be computed
on actual minute basis and paid for at time and one-half rates,
with double time computed on actual minute basis after sixteen
continuous hours of work in any twenty-four hour period
computed from starting time of the employee's regular shift.
Carrier would apply this rule as only allowing double time on days on
which an employee is assigned to work the hours of his regular assignment.
The Carrier contends that the literal language of the Rule contemplates that i n
any 24-hour period in which an employee was' not regularly assigned an 8hour work period, double time payments are not required.
Such an interpretation is not only at odds with the literal language of
the rule, but it is also at odds with its manifest purpose - provide an additional
penalty to Carrier to inhibit working employees inordinately long hours
without time off. Carrier is simply misreading the rule, when it suggests that
the double time penalty is warranted only on days on which an employee was
scheduled to work, but is not warranted on days not scheduled to work, even
though the time on duty would exceed 16 hours. The underlying purpose of
adopting a requirement for double time after 16 hours is to make it more costly
for the Carrier to work an employee over 16 hours. It is not a bonus provision
for performance, it is. a penalty for excessive time on duty. Overtime is often
referred to as penalty time. When Carrier works an employee over 16 hours
the penalty increases from time and one-half to double time.
Carrier's argument in this matter is not new. Nearly fifty years ago the
Third Division, NRAB, considered a similar carrier argument on the
application of nearly an identical rule. It was rejected then, properly so.
In Award 5156,the NRAB noted:
The controlling provision of the Agreement is Article 4(a),
... which provides:
... Time worked preceding or following and
continuous with the regular eight (8) hour work
period, exclusive of meal period, shall be computed
on the actual minute basis and paid for at time and
one-half rates, with double time computed on actual
minute basis after sixteen (16) continuous hours of
work in any twenty-four (24) hour period computed
from the starting time of the employee's regular
shift . ....
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Award No. 69
Carrier contends that no provision is made for double time on
Sundays and holidays under this rule. In this the Carrier is in
error. The rule provides for double time after 16 hours'
continuous service in any 24 hours period computed from the
starting time of the employee's regular shift. This simply means
that in computing double time for work in excess of 16
continuous hours of service, the starting time of an employee's
regular shift constitutes the starting point of the 24 hour period
whether during regularly assigned days or otherwise. The Rule
does not mean that double time is allowable only on days on
which the employee holds a regular assignment; it means that
double time accrues in any 24 hour period which in which more
than 16 consecutive hors are worked and, in determining the
beginning of the 24 hour period, the starting time of his regular
assignment will be used.
Fifteen months after Award 5156 was adopted by the Third Division, on
March 19, 1951, the NRAB had a second occasion to consider a similar dispute,
involving a similar argument, arising on a different carrier. In Award 5262 ,
the Board noted:
In Award 5156, involving the Chicago and Eastern Illinois
Railroad, this Board with the assistance of Referee Carter had
occasion to consider a similar claim made by section men for
double time for work on a day when they were. not regularly
assigned. We have reviewed the record in that docket. The facts
therein presented are analogous to those herein insofar as the
double time claim is concerned. The rule involved (except for
minor deviation in wording not affecting its meaning) is the
same. In that docket and in this, the respective contentions of
the parties as to the meaning and application of the rule were
essentially similar. The Board there held that the Rule does not
mean that double time is allowable only on days on which the
employee holds a regular assignment; it means that double time
accrues in any 24-hour period in which more than sixteen
consecutive hours are worked and, in determining the beginning
of the 24-hour period, starting time of the regular shift will be
used. We subscribe to the reasoning of that Award and,
accordingly, hold that this claim should be sustained.
This Board also subscribes to the reasoning in Award as to the
application of the Rule we are reviewing. From an uncomplicated reading,
one that is not convoluted and twisted, a fair reading of Rule 39(a), can only
mean that
double time accrues in any 24-hour-period in which more than
sixteen consecutive hours are worked and, in determining the beginning of
the 24-hour period, the starting time of the reeular. shift will- be used.
The claim has merit. It will be sustained.
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Award No. 69
AWARD
Claim sustained.
ORDER
Carrier is directed to comply with this Award and make all payments due
claimant within thirty days the ate indic d below.
John C F , Chairman & Neutral Member
E. N. Jaco , Jr., Carrier tuber 'chard A. Lau, Employee Member
Dated at Mt. Prospect, Illinois., April 21, 1997
Page No. 4