COPY
ORG. FILE 7-61
CARRIER FILE 140-525-15 AWARD NO. 13
NRAB FILE CL-7462 CASE N0. 13
SPECIAL BOARD OF ADJUSTMENT N0. 174
PARTIES The Brotherhood of Railway and Steamship Clerks,
Freight Handlers, Express and Station Employes
TO
DISPUTE The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that-
(a) Carrier violates the rules of the Clerks' Agreement at Arkansas
City. Kansas, when it assigns a rest day relief position in a manner described
below, resulting in its occupant performing work in excess of eight (8) hours
in a period of twenty-four (24); and,
(b) Ruth I. Lasater shall now be paid the difference between time
and one-half and the straight time she was allowed for the hours 3:45 p. m. to
11:45 p.m. on each Tuesday beginning March 10, 1953 and until violation is
corrected.
FINDINGS: Special Board of Adjustment No. 174, upon the whole record and
all the evidence, finds and holds:
The Carrier and Employes involved in this dispute are respectively
Carrier and Employes within the meaning of the Railway Labor Act as amended.
This Special Board of Adjustment has jurisdiction over this dispute.
Claimant held a regular relief position assigned Sunday Monday
11:45 PM to 7:45 AM and Tuesday 7dednesday Thursday 3:45 PM to 11:45 PM. Thus,
on the day starting Monday at 11:45 PM and ending Tuesday at
11:45
PM, she was
assigned to work two noncontinuous eight hour periods: eight hours on duty
followed by eight off followed by eight on. The claim is that the second of
these tours of duty should have been paid at time and one-half instead of
straight time.
Article VI Section 1 of the Agreement reads:
t'Except as otherwise provided in these rules, eight
(8)
consecutive hours work, exclusive of the meal period,
shall constitute a days wrk.'1
Article VII Section 1-a of the Agreement reads:
flExcept as otherwise provided in these rules, time
in excess of eight
(8)
hours, exclusive of meal period,
continuous with and outside of regular assigned hours, on
any day, will be considered overtime and paid on the
actual minute basis at tkm rate of time and one-half."
S,SR
IW-AWp
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The adoption of the National Forty-Hour ideek Agreement added the
following paragraph in Article III 0-ection 10-a of the Agreement which reads:
ItAssignments for regular relief positions may on
different days include different starting times, duties
and work locations for employes of the same class in the ::
... .
same seniority district, provided they take the starting
time, duties and work locations of the Employe or employes
whom they are relieving."
The first Agreement between the parties was executed effective
October 1,
1942
and it incorporated the overtime rule (Article VII Section
1-a) which had been in effect on the property for many years. The fact that
this rule contained the unusual qualifying language "continuous with and outside of regular assigned hours," coupled with the existence of manpower shortages in
1942,
led to the adoption by the parties of two Letters of Understanding,
one dated December
9, 1942
and the other April
15, 1943.
The Letter of Understanding of December
9, 1942,
which is still in
force, is not relied upon by the Organization in the statement of position in
its submission. We therefore express no opinion on the meaning and effect of -
this Letter of Understanding.
The Letter of Understanding of April
15,
1943,
which was cancelled
by mutual agreement upon the adoption of the National Forty-Hour Week Agreement, so far as pertinent reads:
"(5)
Incumbents of regular relief assignments are
'necessary to the continuous operation of the Carrier
under Article VIII and will take the rate of pay and
assigned hours of each Employe relieved, but will be assigned in such a way as to afford the incumbents thereof
at least eight (8) hours off duty between work periods;
the provisions of Section 1, Article VII not being
applicable when, in following their assignments from position to position, incumbents of such relief positions
work more than eight hours on any day."
It is the thought of the Organization that the overtime rule requires the
payment of time and one-half for all work in excess of eight hours on any
day, whether continuous with and outside of regular assigned hours or not3
that paragraph
5
of the Letter of Understanding above quoted constituted an
exception to the overtime rule; and that, upon cancellation of the Letter of
Understanding, the overtime rule came into play as the Organization interprets it.
First. While paragraph
5
of the Letter of Understanding expressly excludes
any possible application of the overtime rule to the specific situation the
parties were dealing with, we are unable to view it as an agreed-upon interpretation of the overtime rule. It did not purport to be an interpretation;
and if it was, it was deliberately cancelled upon the adoption of the National
Forty-Hour Week Agreement.
Ile conclude that the claim must stand or fall on the overtime rule
as written.
_ 2-
$C3A 17q · AwD !3
Second. There are overtime rules, rnlike the overtime rule in this Agreement
that require the payment of time any ore-half for all tire worked in excess
of eight hours on any day (see Awards 6$7, 2030 and 23119 relied upon by the
Organization).
The overtime rule in 'his Agreement., however, contains the additional qualifying hords "continuous with and outside of regular assigned hours.ti
The position of the Organization denies all meaning and effect to these
qualifying words.
Claimants assignment with different starting times was a permissible
assignment under the rules; and, while she worked more than eight hours on the
day starting Monday at 11:45 PM, the time under claim here was neither continuous with nor outside her regular assigned hours.
It seems to us that any other conclusion involves our amending
the plain terms of the overtime rule as the parties found it expedient to do
in their various Letters of Understanding as changing conditions and circumstances warranted. This, of course, we have no authority to do.
We conclude that Article VII Section 1 (now Section 1-a) means
what Award 4201 said it meant in the absence of some controlling amendatory
agreement or understanding between the parties.
A W A R D
Claim denied.
s Put-rt Wyckoff
Che._'rman
ls/
6R
D. Comer
Ls/
W. Ray Clark
er Membei Employs Hember
Dated at Chicago, Illinois, October 7, 1959.
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