The Second Division consisted of the regular members and in addition Referee Edwin H. Berm when award was rendered.
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
By Award dated May 2, 1994, a Joint Skill Adjustment Arbitration Committee established pursuant to Article VII of the November 27, 1991 Imposed Agreement Form 1 Award No. 13713
(referred to as the "Peterson Award") determined that there should be a sliding scale skill differential for Hostlers and Hostler Helpers. The skill differential was not part of an employee's basic wage rate; was not subject to subsequent general wage increases; and was not multiplied by one and one-half if the employee performed work outside regular working hours.
By Award dated June 7, 1994, PLB 5533, Award 5 (a dispute between the Illinois Central and the IAM, also referred to as the "McAllister Award") held that the skill adjustment applicable to the Machinists Craft was payable on vacation compensation but not payable on other types of compensation for time not worked.
The Carrier applied the skill differential from the Peterson Award to vacation days. However, a dispute arose between the parties concerning other hours paid, but not worked - specifically, holidays, bereavement leave, personal days, education/rules examination and jury duty. That dispute was decided in Public Law Board 3139, Award 175 (referred to as the "LaRocco Award").
After issuance of the LaRocco Award and after certain payments were made, the Organization learned that employees were not compensated under the LaRocco Award for overtime continuous service and calls - which are hours paid, but not worked. The Organization sought clarification from Referee LaRocco concerning payment for those hours. After convening an executive session on April 26, 2000 and by letter dated April 28, 2000, and after the Carrier opposed the requested clarification, the Organization's request for clarification was not granted by Referee LaRocco. Referee LaRocco stated:
This claim followed with the Organization taking the position that overtime continuous service and calls should be compensated in accord with the skill adjustment for all hours paid under the Peterson Award. Form 1 Award No. 13713
While the LaRocco Award did not specifically resolve the question before the Board (whether overtime continuous service and calls must be compensated in accord with the skill adjustment for all hours paid under the Peterson Award), for purposes of stability, the principles stated in the LaRocco Award shall govern the disposition of the claim. Specifically, those principles are: (1) the Peterson Award "is silent about when, and if, the skill differential should be paid on hours covering time not worked"; and (2) "[f]or almost three years after the simultaneous issuance of the Committee's decision . . . the Carrier applied the skill differential to all types of pay for time not worked . . . [and] the Carrier is mandated to continue the past practice on this property."
Therefore, if during the three-year period following issuance of the Peterson Award, the Carrier paid the skill differential to covered employees for overtime continuous service and calls, then, based upon the principles set forth in the LaRocco Award, the Carrier must compensate the affected employees for those payments at the applicable rate and accordingly make those employees whole commencing on the date set forth in the claim.
The Carrier's arguments do not change the result. The Carrier argues that this Board does not have jurisdiction to resolve the dispute. We disagree. Given that the Carrier opposed clarification before Referee LaRocco concerning how to compensate continuous service and calls; Referee LaRocco determined that his Award did not cover that dispute; and that Referee LaRocco determined that the Peterson Award "is silent about when, and if, the skill differential should be paid on hours covering time not worked," we find this dispute concerning overtime continuous service and calls is a new claim and we therefore have jurisdiction to resolve the dispute. The Carrier's further argument that the concept from the Peterson Award that to be eligible for compensation the hours must be actually worked and the disputed hours in this matter were not so worked does not change the result. Again, Referee LaRocco determined that the Peterson Award "is silent about when, and if, the skill differential should be paid on hours covering time not worked." While perhaps subject to debate, that determination is not palpably in error and, for purposes of stability, we are obligated to follow that determination. Form I Award No. 13713
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.