Form 1 NATIONAL RAILROAD ADJUSTNIETV'1z BOARD Award No.
7139
SECOND DIVISION Docket No.
69+6
2-TP-MPTofNO-MA-'76
The Second Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
( International Association of Machinists
( and Aerospace Workers
Parties to Dispute:
( Texas Pacific-Missouri Pacific Terminal
( Railroad of New Orleans..
Dispute: Claim of Employes:
1. That the Texas Pacific-Missouri Pacific Terminal Railroad of New
Orleans violated the controlling Agreement, in particular Rule 1,
by improperly rebulletining positions contrary to the Rule, resulting
in claims commencing February
23,
197+. Rule 1, as follows:
"RULE 1
Hours of Service, 40-Hour Week, Rest Day, Etc.
NOTE: The expression 'positions' and 'work refer to
service, duties, or operations necessary to be
performed the specified number of days per
week, and not to the work week of individual
employes.
(a) General:
The Carriers will establish effective September 1, 19+9, for all
employes, subject to the exceptions contained in Article II of the
Chicago Agreement of March 19, 19+9, a work week of 40 hours,
consisting of five days of eight hours each, with two consecutive
days off in each seven; the work weeks may be staggered in accordance
with the Carriers' operational requirements; so far as practicable
the days off shall be Saturday and Sunday. The foregoing work
week rule is subject to the provisions of the Chicago Agreement
of March 19, 19+9.
(b) Five-Day Positions:
On positions the duties of which can~reasonably be met on five
days, the days off will be Saturday and Sunday.
(c) Six-Day Positions:
Where the nature of the work is such that employes will be needed
six days each week, the rest days will be either Saturday and Sunday,
or Sunday and Monday.
Form 1 ~":i~:ard No.
7139
Page ? Docket No.
6
-TP-M.PfofNO-MA-'
76
"(d) Seven-Day Positions:
On positions which have beer. fi 11ed seven days :per week, any two
consecutive days may be the rest days with the presumption in favor
01
Saturday a.n~ Su.nd.ay.
(e) Regular Relief Assignments:
All ,possible relief assignments with five days of work and two
consecutive rest days will be established to do the work necessary on
rest days of assignments in six or seven day service or combinations
thereof, or to perform relief' work en certain days and such types
of other work on ether days as may be assigned under this agreement.
:'lssignemnts 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 employer they are relieving.
The regular relief positions created under this paragraph (e)
shall be bulletined and shall be .paid the rates applicable to the
position on which relief service is performed. If relief positions
include
rel.W.f service on two :positions on one day, the straight time
rate of each ,position s't;all be paid, but this does not contemplate
working a relief employe through two consecutive shifts.
(e-1) Rest Day Relief Travel Time:
Employees regularly assigned to rest day relief service who are
required to travel as a part of their assignment shall be paid
travel. time as hereinafter ,provided:
(e-2) The carrier shall designate a headquarters point for each
rel.iev assignment, which shall be changed only after ten (10) days
written notice to the employe affected.
If the time consumed in actual travel, including time en
route. -from the headquarters point to the work location, together
with necessary time spent waiting for the employe's shift to start,
exceeds one hour and thirty minutes, or if on completion of his
shirt necte;;sary time spent waiting for transportation plus the time
of travel, including waiting time en route, necessary to return to
his headquarters point or to the next work location exceeds one hour
and thirty minutes. then the excess every one hour and thirty
minutes in each case shall be .paid for as working time at the straight
time rite of the ,job to which traveled.
Form 1 Award No.
7139
Page 3 Docket No. 6946
2-TP-M1xI'ofNO-MA-'
76
"(e-4)
Where an employe is required to travel from his head
uarters point to another point outside the environs of the city
or town in which his headquarters point is located, the Carrier will
either provide transport/ anon without charge or reimburse the
employe for such transpcxwtatien cost.
('Transportation' means travel by rail, bus, or private automobile
and 'transportation cost' means the established passenger fare or
automobile mileage allowance where automobile is used.)
(e-5) When such employes are unable to return to their headquarters
on any day they shahl be entitled,.in addition to the allowance
under paragraphs (e-3) and (e-.4) of.this Rule, to reimbursement for
actual necessary cost of lodging and two meals peg day while away
. from headquarters, with a maximum of $4.00 per 4ay, i.e., the 24
hour period following the time where they employe's last shift bean-
but on such days they shall not be paid fQr any hours after their
assigned hours unless actually working, or travel~ng to another work
location. Accommodations on a sleeper may be furnished in lieu of
the lodging above provided for any time spent oA the sleeper will
not be considered travel time.
(e-6) An employe who performs rest day relief service qn an
assignment covered by other travel time rules in this Agreement will
be covered by such Rules while on duty irk place 4f the relieved
employe, but his travel to and from the headquarters of the relieved
.. : employe will be subject to this Rule.
(er7) The Carrier will make such relief assignments so 4p to
have,
consistent with the requirements of the service and other provisions
of this Agreement, a minimum amount of travel and time away from
home for the employes involved, and at the request of the General
Chairman, the Carrier's representatives will meet to discuss
questions that may be raised as to such assignments.
(e-8) It is understood that this Rule applies only to regular
rest day relief assignments and does not change or modify the application of other travei,time rules irk this Agreement.
The reference to 'private automobile' and 'automobile mileage
allowance' in Rule 1 does not meat. that an emp~oye may be required
to own or furnish ate automobile to qualify for one of these traveling
relief positions.
Where arrangements are made with employe to use his automobile in
traveling from one point to another on a traveling relief position,
he shall be paid an allowance of 7 cents per mile for the use of
his car.
Form 1 Award No.
7139
Page
4
Docket No.
69+6
2-TP-NNPTofNO-MA-'
76 'wave
`(f) Deviation From 1-~:nday-.Pri .day Week:
if in .posi.b-ons o°
Yne.p~i~
extending over a period of five days per
"reek; an operational ~r°t~b~'M~rr: arises which the Carriers contend
cannot. be met under
the,
°~.~r~.~r,.,sions of Rule 1, Paragra, h b above,
and requires that some of ,- .wch employes work Tuesday to Saturday,
_instead of M~rday to
Fc~.~Iay,
and the employes contend the contrary
and if the parties fail to agree thereon, then if the Carriers
_nev_ertheless put such a;,s_~. rurierzts into effect, the dispute may be
processed as a grievance
3r
claim under this agreement.
(g) Nonconsecutive Rest Days
The typical work week is to be one with two consecutive days off,
' and it is the Carrier's obligation to grant this. Therefore, when
an operating problem is mot which may affect the consecutiveness
of the rest days of positions
ox
assignments covered by Paragraphs (c),
(d) and (e), the following procedure shall be used;
1. All possible re lar relief positions shall be established
pursuant to Rule 1, Paragraph ~e).
2.
Possible use of rest days other than Saturday and Sunday,
by agreement or in accordance with other provisions of this Rule
T.
3.
Efforts will be made by the parties to agree on the aqcumulation
of rest time and the granting of longer consecutive rest periods.
' ~-: , ~the_ ~'~ suitable or practicable plans which r: ay be suggested by
either of the parties shall be considered and el:tbrt made to came to
an agreement thereon.
5. If the 'foregoing does. not solve the problem, them some pf the
relief men may be given nonconsecutive rest days,
h.
If'after all the foregoing has been done there still remains
service which can only be performed by requiring !employes to work
in excess of five days p&z· week, the number of regular assignments
necessary to avoid this may be made with two nonconsecutive days
off.
7. The least desirable solution of the problem would be to work
some regular employes on the sixth or seventh days at pvjertime rates
and thus withhold work from additional relief men.
Form 1 Award No.
7139
Page
5
locket No.
6946
2-TP-MPTofNO-M.A-~'
76
"8. If the parties are in disagreement over the necessity
of spl i.tting the rest days on any such assignments, the Carrier may
n.everthele;:s put
t:2.e
~~.s~,:~.en..: °.rto effect subject to the right
of employes to process the diuxrzt-e as a grievance or claim under
this agreement, and in s.uct~ proceedings the burden will be on the
Carrier to prove, that its
.~y:t,
rations.l
Y°;
T~:ir ements would be impaired
if it did not sp1:Yt the rest days in question and that this could
be avoided only by working _--ert-ain employer in excess of five days
per week.
(h) Rest Days of Fizrluugl2ed F`mployes:
To the extent furloug1ped met may be utilized under this agreement,
their days off need not be consecutive; however, if they take the
assignment of a regular employe they will have as their days off
the regular days off of that assignment.
(i) The term `work week' for regular assigned employer shall m(~an
a week beginning on the first day on which the assignment is
bulletined to work, and for unassigned employes
shall
mean a period
of seven consecutive days starting with Monday.
(j) Sunday Work:
Existing provisions that punitive rates will be paid for Sunday.
as such are eliminated. The elimination of such provisions does
not contemplate the reinstatement of work on Sunday which card be
dispensed with. On the other hand, a rigid adherence
to
the precise
pattern that may be in effect immediately prior to September 1,
1949,
with regard to the amount of Sunday work that may be necessary,
is not required. Changes in amount or nature of traffic or business
and seasonal fluctuations must be taken into account. This is not
to be taken to mean, however, than types of work which have
dot
been needed on Sundays will hereafter be assigned on Sunday, The
intent is to recognize that the number of people on necessary Sunday
work may change.
(k) Bulletin R1)'! e;
Regular assignments reduced to a five day basis under this Rule
shall not be considered new jobs under bulletin rules and employer
will not be permitted to exercise displacement privileges as a
result of such reductions. However, employer' will be notified of
their assigned rest days by the posting of notice or otherwise.
(1) The rest days on all regular and relief positions shall be
assigned and the employer shall be notified. The rest days shall
be the same of each week but may be changed to meet service
requirements by giving not less than five (5) days written notice
to employer affected.
Foxm 1
-Page 6
2.
Award No.
7139
Docket No.
69+6
2-TP-MPTofNO-MA-'76
C,'11..ararrt-ees :
Except to the e.; i;,~=~, t t;-~ .~' the covxerage of existing guarantees
was extended to certas-,. e3r,,,,~ J'_oyes covered by Article II, Section I
(e) of the March 1,"),
194~
Agreement, the adoption of the 'shorter
work week' rule in Article 1:I, Section 1, of that agreement did not
create a gLLara.ntee of any- rcLuber of hours or days of work."
(Emphasis supplied)
That in restituticrv:lq the `~'~:xas Pacific - Missouri Pacific Terminal
Railroad of New Orleans ~e ordered to reimburse the following
Machinists at the applicable punitive rate of pay for eight
(8)
hours each day on the respective dates given:
F. J. Rodriguez ...
J. D. Rafferty....
A. J. Cornibe.....
E. G. Rivero......
L. Lang........
E. W. Camardelle..
F. G. Albrecht....
S. D. Smith.......
...February
23, 197+
...February
24, 197+
...... March 1,
1974
. . . . . March 2,
19'7+
. Maxch 2,
197+
...... March
3, 197+
...... March
3, 197+
...... March g,
lo,
16,
17, 23
and
24, 7.974
Fox work entitlement they were justly due and denied by the Carrier
under the controlling Agreement that being the Consolidated Shop
Crafts Agreement effective August 1,
1969.
Specifying the
assign-.
ment s as per Exhibit
The second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employe$ involved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June 21, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The employees assert that Carrier blanked a Machinist seven (7) day
swing shift relief position, for the purpose of filling a General Foreman's
job. It is the employees' contention that said action demonstrated a lack
of a need for such a position, to the point that a rebulletin of a 5-day
position (with Saturday and Sunday rest days) was mandated.
Form 1
Page 7
Award No. 7:
Docket No. 69.6
2-TP-MPTofNO-MA-'76
Although Carrier subsequenti~,= rebulletined in a manner acceptable to the
employees, the Organization denies that said action makes moot a consideration,
of the period of time during which the asserted violation continued.
In Carrier's defense of its ~.-Crion, it points out that it did not take
steps which warrant a conclusion what five (5) day positions were mandatory,
and it asserted, on the property, that during the applicable period, service
was protected by at least one Machinist per shift, seven days per week.
Certainly, the Agreement speaks to concepts of manning and rest days, but,
in our extensive review of this lengthy docket we do not find that a
blanl~ing
of one seven-.day position results i4 an at;tomatic requirement of
redes3gnatiori
of all fiositions in the manner suggested by the employees. Nor are we aple
to find a showing that Carrier's action was other than that required to protect
the required service.
We do not note any Awards which support the contentions advanoqd
by the
employees, and accordingly, we dismiss the claim for failure of proof.
A W A R D
Claim dismissed.
Attest: Executive Secretary
National Railroad Adjustment Board
By
osemarie Brasch - Administrative Assistant
Date at C4icago, Illinois, this 8th day of October,
1976.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
,.
r_