Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8726
SECOND DIVISICN Docket No.
8579
2-SPT-CM-'81
The Second Division consisted of the regular members and in
addition Referee David P. Twomey when award was rendered.
Brotherhood Railway Carmen of the United States
Parties to Dispute: and Canada
(
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That the Southern Pacific Transportation Company (Texas and Louisiana
Lines) violated the controlling agreement particularly Rules 1 and
ZI,
when they denied the below named carmen the overtime rate while
attending Body Mechanics' School before or after their regular tour
of duty.
2. That accordingly, the Southern Pacific Transportation Company (Texas and
Louisiana Lines) be ordered to compensate the following carmen the
difference between the straight time rate they were paid and the overtime
rate they were entitled to receive, or a total of one hour (1') each
at the pro rata rate for the date listed next to their name:
July 1,
1977 7
A.M. to
9A,M.
S. Garza, Jr.
N. A. Rivera
P. L. Springer
V. T. Brown
3
P.M. to
5
P.M. A. Brown
C. A. Kimbrell
L. R. Suarez
July
5, 1977 7
A.M. to
9
A.M. B. Boyce
L. Mann
W. Williams
3
P.M, to
5
P.M. David Zindler
H. Mendoza, Jr.
F. G. Adams
B. Simpson
M. Alvarado
J. D. Middleton
July 6, 1977 7
A.M. to
9
A.M. A. J. Miller
3
P.M. to
5 P.M.
R. C. Vickroy
A. B. Whitcher
E. B. Adams
J. Broussard
A. Meane
July
7, 1977 7
A.M. to
9
A.M. C. T. Lucas
J. B. Harris
T. Salazar
H. C. Shitaker
4
Form l Award No.
8726
Page 2 Docket No.
8579 _
2-S Pr-CM-'81
3
P.M. to
5
P.M. A. F. Luce
R. N. Doty
L. Jernison
E. E. Petty
July
8, 1977 3
P.M. to
5
P.M- B. S. Martinez
S. G. Perossa
July
13, 1977 3
P.M. to
5
P.M. R. B. Reid
F. T. Ramirez
G. S. Harvey
H. Flares
July 14, 1977 7
A.M. to
9
A.M. J. Osborne
C. P. Skinner
W. V. Calhoun
3
P.M. to
5
P.M. G. Rideout
J.
W. Batta
J.
L. Frederick
July
15, 1977 7
A.M. to
9
A.M. C. R. Rinehart
G. M. Duncan
July 20,
1977
11 P.M. to 1 A.M.
J.
L. Escarino
Findings
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 employes involved in this dispute
are respectively carrier and employe within the meaning of the Railway Labor Act
as approved June 21,
1934.
This Division of the Adjustment Board has jurisdictiaz over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The forty-five named claimants in this case were instructed by the Carrier
to attend a class on Body Mechanics, which class was designed to instruct employees
on how to work safely and prevent injury to their backs. The class was held on
various dates in the month of
July, 1977.
All of the claimants were instructed by
their immediate supervisors to attend a specific class either prior to the start
of their shift or immediately after the end of their shift. Each claimant was
paid for attendance at the class at the pro-rata rate of pay.
The Organization contends that Rule 1 of the Agreement is clear that a day's
work shall consist of eight hours only, and therefore, any service performed by
an employee beyond eight hours comes within the confines of Rule
4,
and is thus
entitled to payment of the overtime rate of pay. The Organization contends that
Form 1 Award No. 8726
Page 3 Docket No. 8579
2-SPT-CM-'81
Rule 4 is clear as to meaning and intent when it outlines that employees working
in excess of their regularly assigned hours will be paid at the overtime rate.
The Organization contends that it has been past practice to pay overtime for
atteisding classes and in the instant case, overtime was paid to other crafts,
including the I?rU. The Organization contends that Management had initially informed
the employees in question that they would be paid at the overtime rate.
The Carrier contends that a long line of awards have held that time spent
attending safety classes is not "work;" and rules applicable to pay for "work"
cannot be used as a basis of pay for time spent at classes. The Carrier contends
that there is no rule in the Carmen's Agreement which provides for overtime pay for
attending safety classes. The Carrier states that no "past practice" supports the
Organization's position. The Carrier denies that any responsible officer advised
that employees would be paid at the overtime rate and even if a supervisor
incorrectly advised such, this would not bind the Carrier to make an incorrect
payment.
The classes on Body Mechanics were safety classes. We agree with the analysis
of Referee Joseph A. Sickles contained in Third Division Award 20323:
"In Award 10808 (Moore), it was noted that there are
exceptions to time consumed by an employee when directed
by the Carrier as being considered 'work' or 'service'. One
of those exceptions was held to be where the circumstance
contains a mutuality of interest. The Award concluded that,
'Awards have held that classes on operating rules and safety
rules are such exceptions.' See also, Award 110118 (Dolnick),
15630 (McGovern), Fourth Division Awards 2385 and 2390
(Seidenberg), 7631 (Smith), 11567 (Sempliner) and Public Law
Board No. 19+, Awards 24 and 25.
The Board does not mean to suggest that the issue in dispute
is so clear of resolution that reasonable minds might not
differ in determining the appropriate application of the
Agreement to the facts presented in this dispute.
Nevertheless, numerous Awards rendered by a number of
Referees have consistently determined that mandatory attendance at classes such as those in issue in this dispute,
do not catstfnte-'Work, time or service' so as to require
compensation under the various Agreements. Because of the
consistent holdings of prior Referees, we are reluctant
to overturn the multitude of Awards."
We find that the Organization has not met its burden of proof that a "past practice"
existed of paying Carmen at the overtime rate of pay for safety classes. While
the evidence indicates that Switchmen were paid differently than the Carmen in
question, such employees are covered by a different Agreement, and Rule 85 of
the Switchmen's Agreement has a specific rule dealing with classes on safety,
etc., which requires a minimum of four hours' pay. The Carmen have no such
similar rule. We find that the fact that Switchmen were paid under a specific
rule is not evidence that a "past practice" existed for Carmen or all Carrier
Form 1
Page 4
Award No. 8726
Docket No.
8579
2-SPT-CM-'81
employees to be paid at the overtime rate for attending safety classes. We find
that while certain Carrier officers may have incorrectly stated that the claimants
would be paid the overtime rate, such does not bind the Carrier under the narrow
facts and circumstances of this case (please see Third Division Award 20323).
We are compelled to deny this claim.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By ~~ _ -'
osemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 3rd day of June,
1981.