(American Train Dispatchers Association PARTIES TO DISPUTE: ( (Burlington Northern Inc.



(a) The Burlington Northern Inc. (hereinafter referred to as "the Carrier") violated the effective Agreement between the parties, Articles 2(b), 2(e) or 3(b) thereof in particular, when it failed and refused to compensate the respective Claimant Train Dispatchers the difference between pro-rata and required to work or perform service for the length of time on the dates indicated below:

 Length of Article
 Claimants Time Dates Violated
 D. R. Merchant 10 hours 3-7-72 3(b)
 R. J. Smith 9 hours 3-7-72 3(b)
 L. H. Treichel 9 hours 3-7-72 3(b)
 N. C. Legato 10 hours 3-8-72 3(b)
 C. C. Hay 9 hours 3-8-72 3(b)
 H. J. Weer 2 hours 3-8-72 2(b)
 T. Barrow 1 hour 3-8-72 2(b)
 F. E. Putnam 9 hours 3-9-72 3(b)
 R. J. Hull 9 hours 3-9-72 2(e)

 (b) Because of said violations, the Carrier shall now be required to compensate the respectiv the dates indicated in paragraph (a) above.

(a) The Burlington Northern Inc. (hereinafter referred to as "the carrier"), violated the effective Agreement between the parties, Articles 2(b) or 3(b) thereof in particular, when it failed and refused to compensate the respective Claimant Train Dispatchers the difference between pro-rata and time and one-half rate of pay claimed when required to work or perform service for the length of time on the dates indicated below:


Length of Article
 Claimants Time Dates Violated
 G. J. Longbottom 8 hours 6-8-72 3(b)
 G. W. Fleming 4 hours 6-6-72 2(b)
 G. W. Fleming 4 hours 6-7-72 2(b)
 F.O. Schuster 8 hours 6-6-72 3(b)
 J. A. Bryson 8 hours 6-6-72 3(b)
 R. E. Stickel 8 hours 6-8-72 3(b)
 G. Frisina 4 hours 6-6-72 2(b)
 G. Frisiana 4 hours 6-7-72 2(b)
 H. E. Stimson 4 hours 6-6-72 2(b)
 H. E. Stimson 4 hours 6-7-72 2(b)
 R. L. Johnston 4 hours 6-6-72 2(b)
 R. L. Johnston 4 hours 6-7-72 2(b)
 H. E. Ratcliff 4 hours 6-8-72 2(b)
 H. E. Ratcliff 4 hours 6-9-72 2(b)

 (b) Because of said violations, the Carrier shall now be required to compensate the respective Claim the dates indicated is paragraph (a) immediately above

(a) The Burlington Northern Inc. (hereinafter referred to as "the Carrier") violated the effective Agreement between the parties, Articles 2(b) or 3(b) thereof in particular, when it failed and refused to compensate the respective Claimant Train Dispatchers the difference between pro-rata and time and one-half rate of pay claimed when required to work or perform service for the length of time on the dates indicated below

 Length of Article
 Claimants Time Dates Violated

 D. R. Merchant 8 hours 6-19-72 3(b)
 C. C. Hay 8 hours 6-19-72 2(b)
 R. J. Smith 8 hours 6-20-72 3(b)
 C. L. Vandeberg 8 hours 6-20-72 3(b)

 (b) Because of said violations, the Carrier shall now be required to compensate the respective Claimants the difference between pro-rata and time and one-half rate of pay claimed for the length of time on the dates indicated in paragraph (a) immediately above.


OPINION OF BOAR: The Claims herein relate to payments for time spent
 in attendance at classes held by Carrier for its
 COMPASS program. COMPASS is the acronym for "Complete Operating Move
 ment Processing and Service System". This new system was installed to
 bring together into one uniform system, tied to a central computer, the
 data on operations (car movements and locations) for the three major
 components of the 1970 merger. Carrier asserts that the classes herein
 involved were part of a two year training program covering some three
 to four thousand employees at about 175 locations. The training included
 new procedures and formats for operations.

 Claimants herein were paid pro-rata payments for the time spent in attendance at the classes; they are claiming punitive compensation (time and one-half) for attending classes either before or following their regular assignments (the latter category seeking, overtime for the excess over eight hours). One Claim, that involving R. J. Hull was withdrawn.

 Carrier takes the position that attending classes for training purposes such as that herein is not "work" or "service" within the language of Articles $ and 3 of the Agreement; such activity is characterized as "other business on behalf of the Company" as specified in Article 20. Furthermore Carrier argues that there has been no indication by Petitioner of any Rules of the Agreement which have been violated, thus the Claim must fail. The Carrier cites a number of awards of the Board and Public Law Boards in support of its position, including Award No. 40 of Public Law Board 713, which will be discussed hereinafter.











"Extra train dispatchers who are required to work as a train dispatcher in excess of five (5) consecutive days shall be paid one and one-half times the basic straight time rate for work on either or both the sixth or seventh days but shall not have the right to claim work on such sixth or seventh days."

 "ARTICLE 20 COURT -- INQUEST. A train dispatcher held from service to attend court or inquest or other business on behalf of the Company, shall be paid, if an assigned train dispatcher -- the daily rate of his assignment for each day so held; and, if an extra train dispatcher -at trick train dispatchers' rate for each day s except an extra train dispatcher shall be paid not less than he would have earned if he had continued in train dispatching service.

 An assigned train dispatcher required by the Company to attend court or inquest, in addition to train dispatcher service on the same day, shall be paid eight (8) hours at the pro rata rate of his assignment. For like service an extra train dispatcher shall be paid on. the same basis at the trick train dispatchers' pro rata rate, except if working a higher rated position at the time such service is performed, shall be compensated at the rate of the position worked. Payments under this section shall be in addition to any other compensation earned for other service.

 Any fees accruing shall be assigned to the Company."

 The Organization states that attendance at the classes was primarily for the Carrier's benefit. It is argued that such attendance was required, constituted "service", and hence was compensable under the penalty rules provisions cited above. The Organization also denies that Rule 20 has applicability to this situation. The Petitioner cites Award No. 7 of the Special Board of Adjustment Established Pursuant to Appendix K which dealt with a related dispute concerning COMPASS training on this property, but with a different Organization. In that Award the Board found that Carrier had utilized the services of the Claimant on an overtime basis and should have compensated him accordingly. Other Awards are cited which dealt with attendance at Carrier's behest and which considered such attendance "work" or "service". Petitioner also argues that Award No. 40 of Public Law Board No. 713 must be distinguished from the instant dispute in that there is no si which was controlling in Award No. 40.

 Award No. 31 of Public Law Board No. 1033 on this property (with a different Organization) quotes a series of Awards (including Awards 15630, 4250, and 14181) which hold that attending instruction classes is not "mark" or "service". Referee Sickles in Award 20323 put the issue well:



1 minds might not differ in determining the appropriate





















Under all the circumstances and for the reasons indicated above we must conclude that the Carrier did not violate the Agreement.



That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and



        d Claims denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division

ATTEST: ~ ~ P ~I~.r
        Executive Secretary


Dated at Chicago, Illinois, this 30th day of April 1975.
                Labor Member's Dissent to Award 20707, Docket TD-24,29


        Award 20707 is palpably erroneous as the decision rendered is not an adjudication based on interpretation and/or application of the applicable Agreement articles.


        Award 20707 cites the pertinent parts of Articles 2, 3 and 20 of the Agreement but later states:


                "In the instant case if the parties had intended that employees attending training classes or on other business for the Carrier be paid at the penalty rate, they would have so provided in the Agreement. instead, Rule 20 supra seems applicable. Since there are no specific Rules in the Agreement relating to compulsory attendance at training classes, we must assume that prior Awards of the Board are controlling and that such activity is not 'work' or 'service'. Such train-

, ing is obviously of mutual benefit to the Carrier end
                the employees. We find that Rule 20 is comparable to

                the rule cited in Award No. 40 of Public Law Board. No.

                713: the reasoning in that Award was properly relied

                on by Carrier. This Board is not empowered to write new

                rules and we do not find any current rule support for

                the Claim herein."


        The parties did place in the Agreement provisions for'the payment of time and one-half for overtime (defined as time worked in excessive of eight (8) hours on any day) and for service on rest days. It is ludicrous to hold that each and every possible kind of or cause for time worked in excess of eight (8) hours (overtime) end each and every possible kind of or cause for rest day service must be specifically enumerated in the respective articles for several volumes could be filled if each and every detail of each task, duty, chore and/or responsibility falling on a train dispatcher were to be set forth in each article. A reasonable construction and/or application of these overtime and rest day articles would be to find that any time the Comfy requires tile train dispatcher to spend time in excess of eight (8) hours on any work day or on rest days compensation at the time and one-half rate is payable unless there is a specific provision creating mi exception to this time and one-half compensation. IIowever, Arti the overtime or rest days time and one-half compensation in the claims involved in Docket TD-20629.

Labor Mem ber's Dissent to Acrard 2"0707, Docket TD-2029 (cont'd)

 Avrarrd 20707 states "Instead, hbzle 20 supra seems applicable" and "We find that Rule 20 is comparable to the rule cited in Award 40 of Public Law Board No. 713: . ." (The word "Rule" is used in Award 2.0707 but the Agreement uses the word "Articl 49 is not comparable to Article 20 and Article 20 is not. applicable as even a casual reading of these provisions reveals.

    R1

ule 49 involved in Award No. 40 of Public Law No. 713 is cited in part in Award 20707 but the complete sentence from this Award reads:

        "Employes attending colu·t, or detailed on any business for the Company other than relief work, shall receive compensation at the pro-rata rate of the position on which service was l::st performed, with a maximum allowance of ei;;ht hoeLrs Oaily."


    Article 20 from the instant :"%grrcement is quoted in !`all in Award 20707.

There are three raraCCrap~s in this Article. Paragraph one applies to a train
 dispntc?:c:, re :;alar or extra, h^li f_cm s°r~·ice to attend court or inquest or
 other b·zchless on behalf o~" `G;hE- CuMpa:ly yn-oviding for paZYrment at the daily r
 rate of his assignment for an assid-,iee train dispatcher and at tric'.dispatchar-:
 daily rage for the extra dispatcher but not less than the extra di'_-i3atcher
 would ha··e ea-_,ned if he had continued in train dispatcher service. :aragrapil
 two applies to a tram: dispatcher, regular o: extra, required to at.celld court
 or inqllont (O't:!21' business on t·oh.'·lf of the COmpalll is not incllm°_d ti a.:?iJ
 paxa_r_ra_ohj in addition to trai^. c:.isp3tch=r service providing for _~.Uy-~;,n: of
      . 6 .

eight ~o~ hours 2a t::e uro-x·ata, rate of his ssigrunent for the as.a_red train
 dispatcher aaui ci;;ht (3) hojrs r ,; trick train dispatchers' pro-rat_ rat- f.^r
 an extra train di:;patcher ante-: wcrl:ing a higher rated position at the time
 such service·is performed. Ana far either the regular or the extra dispatcher
 paragraph two establishing the minimum payment of eight (8) hours pro-rata for
 such additional service states "PAY;*D;TS LNDER TRIS SECTION Saf.LL BE IN ADDITION
 TO AN! 0'fHER COMPENSATION EAR!1kD FOR 0'TME"it SERVICE." Paragraph thi·ee has no
 application in these claims.
Therefore, it is apparent that Article 20 is not applicable 'because the Claimants were not held from ser,rice ':o attend court or lnques-~ or other business on behalf of the Coanpatiy tiger rwragraph one nor were t,zU Claimant:: reqtUred by the Company to att=.::t .:oar ur inquest In audition to tra_a dispatcher service on the same gay under paragraph two. The Carrier on the propert.·,· made the argument that neither of the conditions in Article 20 had been satisfied and, therefore, no compensation wnatsoever was payable buc sought to extract the "other business in behalf of the Company" phrase in

                        _1-

Labor Member's Dissent to Award 20707, Docket TD-20629 (cont'd)

 paragraph one to defend its payment for COMPASS CLASS attendance at the pro-rata rate rather than the time and one-half rate. If the phrase "other business in behalf of the Company" were to now be inserted into paragraph taro of Article ?0 and Article 20 w&s found to be applicable as Award 2070'( holds, then the minimum of eight (8) hours pro-rata additional compensation would be applicable to the overtime (i.e. service in excess of eight hours or in addition, to train dispatcher service) claims. The Carrier contended on the property and the Employes agreed in the record that Article 20 is not applicable to the instant claims.

 ?t is equally apparent from a reading of the Agreement provisions involved, i.e. Rule 49 in Award No. 40 of public Law Board No. 713 and Article "'0 in Award 20707, that they axe not comparable. Rule 49 covers court attendance and/or any lrasiness for the Company other than relief work, establishes a maximum daily <^?levaanc°_ of eight hours, and that the pro-rata co:rpensation rate established will be based on the position on which service was last ~erforTed. Article 20 in pcuagraph one covers a train dispatcher held from service to attend court or inquest or other business in behalf of the Company establishing the mini=um daily rate of pay, and in paragraph t·.~to provides for additional cotpensation for a train dispatcher who is required by the Carrier to attend court or inquest :in addition to performing train dispatcher service ::n the same day establishing a minimum payment of eight (8) hours pro-rata =e:- sucb additional court or :'.nciucst service. Rule 49 and Article 20 are no,; only not comparable but are dis°imilar.

 Award 20;07 also states "Since there are no specific Rules in the Agreement rulcitin% to compulsory that prior e~:.r~rd.s of the Board are controlling and that such activity is net 'work' cr °service'. Such training is obviously of mutual benefit to the Carrier and the employees".

 The obvious fault with Award 20707 is holding that there are no specific
 Rules in the Agreement relating to compulsory attendance at trainin.- class°s but
 also holding that Article 20, which is a specific rule in the Agree^ent (E;overn·
 ing when a train dispatcher is withheld from service to attend court or inquest or other business in behalf of the Company in paragraph one and when required

 to attend court or inquest in addition to performing train dispatcher service on the same day in paragraph two) applies to compulsory attendan^a at -_lxe.·:e COMPASS CLASSES, which Award 20707 ackt:ozrledg,~a to be training classes. P~,ard 7 of Special Board of Adju.^.tment established pursum:t to Appendi22: ''I:" -· i'ur.~inftoc Northern Inc.-BRAG Agreement - considers these same COMPASS training classes.

                          -3-

Labor ';ember's Dissent to Award 20707, Docket 7D-20629 (cont~d)

 Award 7 also faced the same contention from this same Carrier 2nd stated "The first facet that the Board addresses itself to is the Carrier's contention that the working agreement contains no provision for compensation of employees, on any basis, who taste training outside their regzlarly assigned tours of duUy". Award 7 further stated:

        "The Claimant, under the control and dominion of the Carrier, is rendering a service to it, albeit he is also deriving a benefit, in performing a prescribed duty or tusk for the Carrier. The fact that the Agreement Rules in question do not specifically list or mention training does not exclude them from being a service, a service which is performed consecutively with the assigned tour of duty as well as on assigned rest days. The several contract provisions do not purport to describe all the elements of service which constitute 'work.' Nor, however, do these contrar,t provisions specifically exclude training sessions from the scope of 'work."


Mard 'l sustained the claims involving these same COMPASS training classes J
 rr V
 uling that the Carrier used the employe on an overtime and/or rest day b=Isis
 and the overtime and/or rest day rules included in the working or schedule
 Agreement appl.ed. The dispute in Ai-hard 7 vas on a,1i fours kn-7,h the instant
 dispute and the claims in Docket =D-20629 should have been suscained on this
 very clear precedent on this property.

 Avmrd. 20707 states "...we must assume that prior Awards of the Board are controll.in'g and teat such activity is not `trorh` or `scr·.=ce`.'' It should be evidenu, that the ?lational Railroad Adjustment Board does not or should not base its decisions on assumptions but on interpretation and/or application of the Agreements between the parties. Precedent in Awarrds is of value when the cases it the precedent Awards are directly similar to the dispute being adjudica;:ed. Award 20707, as support for its erroneous finding that COMPASS Class attendance is not "work" or "service", mentions Award :1c. 31 of Public Law Board No. 1033 on this property which covers SP-UT classes which are not the same as COMPASS classes. CO;.TAS; classes were involved in I ;,Mrd ITO. 7 of Special Board of Adjustment established under Appendix "K" as bereinbefore mentioned and should have morn precedentiai value than an Awwd considering other tralning classes.. Award 20707 Sta4°_;, that "A;:.ird 31 of PXblic Law Zcard No. 1033 on this property with a different Grganization) quotes a series of Awards (including Awards 15630, 4250 and 14181) which hold that attending instruction classes is not 'work' or 'service'." Awards 4250 and 14181 involv--d disputes i4zerein the claimant employes attended operating rules classes which are not
 Labor Member's Dissent to Award 20707, Docket TD-20629 (cont'd)

 similar to C014PASS classes. Award 15630 did not involve operating i;rles classes but it was ruled there was a surilar mutuality of interest and benefit. Award 15630 ruled that the cl=ass involved vas the same as operatirn rules classes, stating "Attendance at clssces, whother for examination of rules or b9ICS, involves the same isaue". The Dissent to Award 15(3;0 points out the error in Award 15630. The other Award cited in Auard 20707 as surport of the ruling that this was not work or ser;·ice was Award 20323 (Sickles). Award 20323 also considers attendance a;: operating rules classes and vez7r clearly iimits the decision to such operating rule cla=sses, stating "Nevertheless numerous Awards r determined that andatory attendance at classes suc:i as those iii "Site in this dispute, do not constitute 'work' <,r 'service' _.o as zo re;air·e conil:~;nsa the Carrier had allowed compensation at the pro-rata rate not,-r-th,:tanding the various Awards mentioned in Award 20323 which found that no commensation whatsoever ryas payabl=e as "service". Award 20323 ruled only that overtime compensation was not payable for attendance at operating rules classes.

 The Referee in the instant case was also furnished a "series of Awards" by the Employes, i.e. 3462, 39661 4790, 6846, 10062,-10808, 11048 . :.3724, 1.7316 of the Third Division and Award 7 of Special Board of Adjustment Wader Appendix "K" purl:n;ton Northern-BAC A-recment, wherein the disUtc involved situations other than operatin- rule:; classes and the clairs were .sustained. Awards 4790, 10062, 1OW8, 11048 and 17316 involved conferences, r.1ec:ti::Rs and/or training sessions similar to the CU-.',PASS trainin=g claswes _naalved in Docket TD-20629. Award 7 of --pecial 3ca.cd of Ad;Jas=cn;; establl-siicu alder Appendix "i(" involved these sa=me MIY'ASS class traiu;in, sessions ca! this some property and th=e claims for overtime a=nd/or rest day service at t'<-_» c.va:~t!T2 :a; were sustained.

 In support of its fol=lowing of what is obviously not the best "series of Awards" Award 20707 states "Such training is obviously of mutual benefit to the Carrier and the employees". However, this same Referee in Awaxd 20016 on this property identified the issue, stating " .. the question is whether Dispatchers have the exclusive right to issue instructions concern-L-_g the picking up and setting out of cars ... " and then went on acid lleS.ied the cla11n, Award 20707 recognizes what CO:.TASS means and what the training classes involved, stating:
        "COMPASS is the acronym for 'Complet=e Operating Movement Processing and Service System'. iris new sysiem was installed to bring together into on=e uniform system, tied to a central computer, the data on operations (ca=r movements and locations) for the three major components of the 1970 merger. Carrier asserts that the classes herein involved were hart of a two year


                          -5_

Labor Member's Dissent to Award 20707, Docket TD-20629 (conttd)

        "training program covering some three to four thousand employees at about 175 locations. The training included new procedures and formats for operations."


The same Referee ruling in Award 20016 that instructions regarding car movements and locations is not work reserved to train dispatchers and in Award 20707 chat CCI.:FA>S training classes (recognized in Award 20707 to be concerned with car movements and locations) were "obviously of mutual. benefit to the Carrier and the employees", makes these two awards incongrous at the very best.

 Atrard 0707 is not an adjudication based on interpretation and/or application of the applicable Agreement articles. In ac:dition, prccedent A~iards whic-1 clearly support these claims were discounted and/or ig:cred to permit denial of these claims based entirely on specious but erroneous reasoning. I must dissent.
                                    J. P. Erickson

                                    Labor Member


-o-