Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26818
THIRD DIVISION Docket No. MW-26589
88-3-85-3-330
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused to
compensate Machine Operators L. R. Gillis, J. A. Curtiss, D. C. Peterson, V.
F. Zimmerman, M. K. Kraninger, G. Thompson, S. R. Maes, L. V. Schermerhorn, R.
L. Treanor, T. D. Benedict and E. Bert for the overtime service they performed
from 4:00 P. M. to 8:30 P. M. on April 18, 1984 (System File M-20/013-210-36).
(2) Because of the aforesaid violation, each of the claimants shall
be allowed four and one-half (4 1/2) hours of pay at their respective time and
one-half rates."
FINDINGS:
The Third 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 employes 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.
Parties to said dispute waived right of appearance at hearing thereon.
The circumstances giving rise to this claim are not in serious dispute. The Claimants are regula
p.m. The Gang was instructed to relocate on April 18, 1984, from Perry, Utah
to Downey, Idaho.
While the Claimants arrived in Downey prior to 4 p.m., their outfit
cars did not arrive at Downey until 8:30 p.m. In dispute is whether or not
applicable Rules provide for pay for the hours from 4 p.m. to 8:30 p.m.,
although the Carrier argues that the dispute was improperly processed through
the claims handling procedure, regardless of the merits of the matter.
Form 1 Award
No.
26818
Page 2 Docket
No.
MW-26589
88-3-85-3-330
The original claim (May 17, 1984) argued that the Carrier had violated "the Agreement, specifica
and 38" when it failed to compensate the Claimants for "four and one-half
(4 1/2) hours overtime service."
The Carrier denied the claim on the basis that the "movement of the
men and machinery was completed during normal working hours" and thus there
was no overtime.
The appeal by the Organization first referred to Rule 35(a), which
calls for pay at time and one-half for "time worked" following the regular
eight-hour assignment. However, based on information developed at the earlier
steps (i.e., that the Claimants were not "working" beyond 4 p.m. but were
awaiting the outfit cars), the Organization then referred to Rule "36(a)."
Rule 36 is entitled "Travel Service" and includes Sections 1, 2, and 3, so
that reference to "36(a)" is somewhat imprecise. Nevertheless, Sections 2 and
3 concern details of compensation of "employees assigned with outfits as headquarters" and "Employee
It should be noted that both Rule 35 and Rule 36 are referenced in
the initial claim by the Organization.
Following conference on the property concerning the claim, the Organization then wrote further t
application of Rule 30(b).
Pertinent portions of the three Rules are as follows:
"RULE 30, DESIGNATED ASSEMBLY POINT
(a) The starting place for section forces
will be the section tool house. The starting
place for bridge and building forces, steel
erection forces and others assigned with fixed
headquarters in terminals, will be the designated tool house or shop. The starting place
for employees assigned with headquarters outfits
will be the designated outfit's tool or supply
car, provided, however, that when the outfit car
is located at a point away from the assigned
tool or supply car to meet the requirements of
the service, the starting time will commence at
the outfit car. When the assigned outfit cars
are located at a point away from the tool or
supply car for the convenience and request of
the employes, the starting time will continue as
commencing at the location of the tool or supply
car.
Form 1 Award No. 26818
Page 3 Docket No. MW-26589
88-3-85-3-330
(b) Employes time will start and end at the
designated assembly point as provided by Section
(a) with the following exceptions:
(c) The assembly point for regular forces
assigned with fixed headquarters shall be subject to change to conform with prevailing conditions, b
in any ninety (90) day calendar period."
"RULE 35. OVERTIME SERVICE
(a) COMPUTATION. Time worked preceding or
following and continuous with the regular eight
(8) hour assignment shall be computed on an
actual minute basis and paid for at time and
one-half rate with double time applying after
sixteen hours of continuous service, until
relieved from service and afforded an opportunity for eight (8) or more hours off duty."
"RULE 36. TRAVEL SERVICE
Section 2 - Change of Work Location - Outfit
Service:
(a) Employes assigned with outfits as headquarters, except as provided in Section 1, 3, 4,
and 5, shall be paid for time spent traveling
when moves are made from one work point to
another during the hours of the employe's regular assignment, including waiting time enroute,
the same as for time worked.
(b) In lieu of pay for time spent traveling
when moves are made from one work point to
another outside of regularly assigned hours, or
on a rest day or holiday, including waiting time
enroute, employes will be paid travel time at
their pro rata rate computed on the basis of
forty (40) miles per hour for normal traveled
road miles between the work location from which
the move commenced and the new work location.
In computing time under this rule,
fraction of less than one-half hour shall be
dropped and one-half or more shall be counted as
an hour.
Form 1
Page 4
Award No. 26818
Docket No. MW-26589
88-3-85-3-330
Section 3 - Extra Gang Assignment - Traveling
In or With Outfit Cars:
(a) Employes assigned to outfit cars which
are considered their headquarters will be compensated as follows when their outfit cars are
moved on or off their assigned seniority district whether they ride the outfit cars or use
other means of transportation to the location
where outfit cars are being moved.
(b) When a move occurs on a regular work
day, employes involved will be allowed straight
time for any portion of the move which occurs
during their regular assigned hours.
(c) When a move occurs on a rest day,
employes involved, who performed compensated
service on the work days, immediately preceding
and following such rest day, will be allowed
straight time on the basis of one hour for each
40 miles or fraction thereof for any portion of
the move which occurs during hours established
for work periods on other days. The maximum
time allowance under this Section (c) shall be 8
hours per day.
(d) As pertains to employes using other
means of transportation to the location where
outfit cars are being moved, in case outfits are
diverted, or work performed enroute, no allowance will be made for any time lost.
(e) In computing time under this rule,
fraction of less than one-half hour shall be
dropped and one-half hour or more shall be
counted as an hour."
It is the Carrier's position that the claim is defective and must be
dismissed, because the Organization, as outlined above, appeared to change the
basis for its position as the claim progressed. Further, the reference to
Rule 30 came only after final conference, by which time accepted procedure
would have required all arguments and evidence to have been set forth.
There is no question that there is some confusion in the presentation
of the claim as it progressed. It remains the fact, however, that the claim
concerned whether or not the Claimants should be paid between the hours of 4
p.m. to 8:30 p.m. on the date in question. There can be no doubt that both
parties were aware that this was the question at issue. The Organization
Form 1 Award.
No.
26818
Page 5 Docket
No.
MW-26589
88-3-85-3-330
cited Rule 35 and Rule 36 at the outset, thus alerting the Carrier to the
basis (or bases) for the claim. As to the obviously belated reference to Rule
30, the Board perceives that this Rule is not, by itself, a basis for payment
in any circumstance. It does, however, provide definition for "starting
place" and "assembly point" which are necessary for a reading of Rules 35 and
36.
As a result, the Board finds that the claim is sufficiently consistent to warrant review on the
The Board finds, as contended by the Carrier, that Rule 35(a) is not
applicable since the period involved was not "time worked." However, Rule 36,
Section 2(b) provides for compensation for "time spent traveling when moves
are made from one work point to another outside of regularly assigned hours,
. . . including waiting time enroute . . . Rule 30 helps to define the use
of "work point," stating that "Employes time will . . . end at the designated
assembly point" (i.e., the outfit car). Rule 36, Section 2 provides for payment at the "pro rata rat
The Board must conclude that these interrelated Rules were intended
to provide compensation in the circumstances, as here, where the employees
were unable to return to their outfit cars until 4 1/2 hours after the
completion of their regular eight-hour day. The appropriate rate of pay (as,
at one point, proposed by the organization) is, however, the pro rata rate.
Pay at time and one-half is reserved, in Rule 35, for time actually worked.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest _
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 25th day of February 1988.
DISSENT OF CARRIER MEMBERS'
TO
AWARD 26818, DOCKET MW-26589
(Referee Marx)
The Majority in this case has gone to great lengths to
rationalize a sustaining Award when, in fact, the result should
have been a dismissal or denial Award.
A review of the record clearly shows the Organization was
uncertain of the Pules which allegedly supported the Claim,
having changed its position and the sought-after relief at every
appeal level, and following the conference on the property. The
Organization also failed to cite any Rule in the Notice of Intent
before this Board in order to clarify its position.
In the initial Claim, the organization utilized a shotgun
approach and cited Rules 1, 33, 35, 36 and 38, although it
primarily relied on Rule 35(a) in seeking relief at the time and
one-half rate. On appeal, the same Rules were cited, but the
relief was changed to the pro rata rate based specifically on
Rule 36, Section 1(a). Following the conference, the
Organization wrote the Carrier asserting Rule 30(b) applied and
that the sought-after relief was again at the time and one-half
rate. The Notice of Intent sought relief at the same rate even
though the Organization merely sought the pro rata rate during
the conference.
The Majority suggests the Organization's reference to Rule
36(a) is somewhat imprecise; however, a cursorv review of the
organization's appeal letter reveals it clearly relied on Rule
36, Section 1(a), and not Sections 2 or 3. The Majority also
failed to take note that the Carrier had previously stipulated
that Rule 36, Section 3, applied to system gang personnel, as in
this case, in lieu of Section 2, and that this had been the
application on the property for 16 years. Without any knowledge
of the interpretation and practice, the Majority erroneously
concluded that the interrelated rules were intended to provide
compensation under the prevailing circumstances; however, an
Award must be based on proof rather than an erroneous
presumption. Rule 36, Section 3, is applicable to system gang
personnel in lieu of Rule 36, Section 2, which applies to
division employees in outfit service. This application has been
supported previously by Award 7 of Public Law Board No. 4219 on
this same property.
For the above reasons, we dissent.
. L. HICKS
M. C. LESNIK
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P. V. VARGA
E. YOST