Nancy J rer - Executive Secretary

CARRIER MEMBERS' DISSENT

TO

AWARD 12415, DOCKET 12310

(Referee Suntrup)

Second Division Award 12415 sustained the claim for eight hours pay at the time and one-half rate for a specific claim date of October 1, 1988. The following obvious errors in the Award render it meaningless for future guidance; the Award:

1. imposed a penalty which the parties had not negotiated;

2. failed to confine itself to the record;

1. A review of Rule 11, the only Rule on which the claim was based, readily reveals that the parties did not negotiate a penalty to apply in instances when the employee first out on the overtime list was not called. Instead, they negotiated a remedy exactly as the Second Division found in Award 5136 in resolving a 1964 dispute between the same parties to this dispute:

"The many Awards that have considered Rule 11 quite consistently hold that it does not restrict overtime distribution to a first-in first-out basis or any precise formula but is properly observed if the work is distributed substantially equally over a reasonable period of time. See Awards 2035, 2040, 2123 and 4980.

The remedy of an employe, who believes that he is being unjustly treated with respect to overtime distribution, is to bring a claim based on a reasonable period of time rather than on an isolated incident."

The claim in Award 12415 was for overtime pay for work the Claimant was not called to perform on a specific date, October 1, 1988. Although it was shown without contradiction that the Claimant later obtained 50 hours of overtime during the month of October, the Majority imposed a penalty which the parties had not negotiated by paying the Claimant for the work he did not perform on October 1.

The majority's concern, that its own brand of industrial justice should be dispensed because an employee who was not on the same overtime list was called in lieu of the Claimant, was misplaced and overlooked the fact that Rule 11 makes no distinction as to the reasons why the Claimant was not called. The negotiated remedy was the same, regardless of whether the Claimant was not called (1) because another employee who was not on the same overtime list was called, or (2) because another employee who was on the same overtime list was called. Thus, the parties who negotiated the Rule plainly intended that regardless of the reason for not being called, the remedy was to distribute the overtime work as nearly equal as possible over a reasonable period of time. As stated, this remedy was applied in this case. The Organization never disputed that Claimant obtained 50 hours of overtime during the same month; it merely referred to the fact as a "smoke screen."

It is difficult to understand how the Majority can justify its decision in view of the many Awards which hold that where the

parties, themselves, have fashioned a remedy, the Division is not empowered to substitute a penalty of its own making.

2. The Majority failed to confine itself to the record in this case. At page 3 the Majority discussed Awards 12291 and 12292 which were rendered on this property and which had interpreted the same Rule 11 which is at issue here. The Majority acknowledged that these two Awards dealt with claims that were identical to the claim in Award 12415. Referring to Award 12291, the Majority cited that part of the Award which held that the Carrier had properly applied the remedy in Rule 11:

"The Carrier did not deny, in that case, that the call board had not beer, used, but instead limited its arguments to the issue of remedy by stating that the remedy for the a11E:ged loss of overtime opportunity should '...be to allow (the Claimant to that case) to equalize the hours' which the Carrier stated it had done after the claim had been filed. The Board denied the claim in that case on the grounds that the Claimant had subsequently been treated equitably and that the 'Rule simply does not call for the requested payment.'"

The Majority then referred to Award 12292 and similarly cited that part of the Award which found that the Carrier had properly applied the remedy in Rule 11.

"In Second Division Award 12292 a claim was also made that the Carrier had failed to use the proper call board for overtime purposes with this craft. But upon acknowledgment by the Carrier that such had been the case, and because of application by the Carrier of remedy in accordance with the equalization of overtime provisions of Rule 11, that claim was also denied by the Board ...."

After citing the above Awards involving the parties to this dispute, wherein the Board ruled that the appropriate remedy in

Rule 11 had been applied by the Carrier and that no payment was called for by Rule 11, the Majority went on to make this outlandish statement:

"Nor is there evidence here of post claim equalization

remedies applied by the Carrier as was the case in claims

filed in Awards 12291 and 12292 cited above."

Here the Majority clearly failed to confine itself to the record. The record showed without contradiction by the Organization that the Claimant, after he was not called on October 1, went on to obtain 50 hours of overtime during that same month of October. Contrary to denying that Claimant had been afforded the remedy of Rule 11, the Organization admitted that fact in the record by calling it a "smoke screen." The Organization did not even challenge the sufficiency of the 50 hours of overtime obtained as an appropriate application of the remedy set forth in Rule 11. The remedy applied in Award 12415 was exactly the same as that in Awards 12291 and 12292.

While it is unclear where the Majority obtained the idea that there was no evidence of a post claim equalization remedy applied by the Carrier in this case, it is patently clear that such notion did not come from the record.

3. The Majority applied sanctions against the Carrier retroactively. Award 12291 denied the claim for payment to a Carman who was not called for overtime on February 14, 1989 by finding that this Carrier had properly applied the negotiated remedy in Rule 11.

"Rule 11 does mandate the use of an 'overtime call board,' and there is an implied local practice here that overtime distribution is governed by the use of such call board. Remedy for failure to do so is less precisely stated -- 'as near as possible, an equal distribution of overtime.' In this instance, and in accord with many previous Awards, thE: failure to offer the Claimant his proper overtime opportunity was remedied immediately thereafter. The Rule simply does not call for the requested payment."

Although it denied the claim as shown above and thereby resolved that dispute, Award 12291. went on to add the following dictum:

"The Board notes, however, that the Rule provides for use of a call board in overtime distribution and that the use of such board is acknowledged at this location. Consistent failure by the Carrier to make use of the call board, if demonstrated, could well lead to a sustaining Award.".

This caution was obviously intended to be prospective only, and could in no way be viewed as a precept to be applied retroactively. Yet, that. is exactly what the Majority did in Award 12415. It converted dictum into a sanction and applied it to a claim that predated the claim that gave rise to the dictum. Without weighing the common sense of its actions, the Majority reached the misguided conclusion that this dictum in Award 12291 concerning an event that occurred on February 14, 1989 should be applied retroactively to an event that had occurred in the previous year on October 1, 1988. The Majority based its sustaining decision in Award 12415 solel on the dictum in Award 12291, which was rendered on April 1,, 1992.

Moreover, the Majority took two claims that occurred in 1989 (Awards 12291 and 12292), coupled them with one claim that occurred

in 1988 (Award 12415) and inexplicably found a continuing pattern of improperly applying the agreement." They totally ignored the fact that the two claims in 1989 had been denied!

4. The Majority awarded pay at the time and one-half rate for time not worked. Not content to leave any wrong turns untaken, the Majority concluded its folly by sustaining the claim at the time and one-half rate. In this industry the arbitral decisions preponderate overwhelmingly against paying the punitive rate for time not worked. This is so evident that in its Submission the Carrier felt it was sufficient,to quote from only three such precedential Awards and to refer to numerous others. On the other hand, the Organization, in its Submission, did not cite any Awards of any kind, let alone Awards supporting the payment of time and one-half. In fact, the Organization did not put forth any argument for payment of the time and one-half rate, either in its Submission or in the handling on the property. The only reference at all to pay at the time and one-half rate appeared in the statement of claim. The Majority's willingness to overlook the Organization's failure to support its claim for pay at the time and one-half rate is yet another indication that the Award failed to confine itself to the record.

In sum, the Majority should have followed that part of Award 12291 which denied the claim in that case on the grounds that the Claimant had subsequently been treated equitably under the Rule and that the "Rule simply does not call for the requested payment."

E . YOST (,/