C Award No. 25
0 Docket No. 25
P
Y SPECIAL BOARD OF ADJUSTMENT NO. 166
BROTHERHOOD OF RAIIIIAY AND STEA24SHIP CLERKS,
FREIGHT HANDLMS, EXPRESS AND STATION EMPLOYES
versus
MISSOURI PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
1. Carrier violated the Agreement in Office of Auditor Station Accounts,
General Office, St. Louis, when, on Saturday; August 18, 1956, it utilized W. L. Root, seniority date May 16, 1955, to work eight hours
authorized overtime, on an ~hanassigned day," in lieu of utilizing Robert
Haley, senior clerical employe entitled to the work, with seniority date
of March 11, 1948, in violation of Rule 25(b) of the Clerks? Agreement;
2. The-Carrier shall pay Clerk Haley for wage loss sustained, i.e., a days
pay, amount 320.01.
FINDINGS: Claimant here alleges that he should have been assigned to perform
authorized overtime delegated to a position designated as No. 59, the
regular occupant of which-was absent account illness. The work was performed en
Saturday, August 18, 1956, which was an unassigned day of position No. 59. It
was likewise an unassigned day of the position regularly occupied by the claimant,
as well as the position regularly occupied by employe Root, who was, claimant
alleges, improperly assigned to perform the overtime work in question.
It is evident that neither employe Root nor the claimant was the !'incumbent-o of the position or the work performed and for which overtime oras authorized
on the date in question. It is also unquestioned that both employe Root and the
claimant here were qualified and capable of performing this work.
On the basis of the record as a-whole in this particular case, the Board
is of the opinion, and so finds and holds, that within the meaning of the fifth
paragraph of Rule 25(b) the absence (as here) of the "incumbent" of the work
entitled the claimant as the senior qualified employe the right of refusal to perform said work.
It is noted that this claim is brought seeking reparations at the punitive rate. A preponderant number of awards of the Third Division hold that the
correct penalty rate for time not worked is the pro rata rate rather than the
punitive rate. No work was here performed. The confronting claim is sustained
only at the pro rata rate.
AWARD: Claim sustained at the pro rata rate of position No. 59.
St. Louis, Mo. SPECIAL BOARD OF ADJUSTMENT N0. 166
September 20, 1957
/s/ Livingston Smith
Livingston Smith - Chairman
s/ Ira F. Thomas /s/ G. W. Johnson
I. F. Thomas - Employ? Member G. W. Johnson - Carrier Member