Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27952
THIRD DIVISION Docket No. CL-27457
89-3-86-3-701
The Third Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10131) that:
1. Carrier violated the National Agreement of November 21, 1981, to
which this Carrier is a party, when it refused to compensate Clerk Peggy
Schutt at the ninety (90) percent rate of pay during the second twelve (12)
calendar months of employment.
2. Carrier's action is in violation of Article XI of the National
Agreement of November 21, 1981.
3. Carrier shall now be required to compensate Claimant Schutt for
the difference between eighty (80) percent rate of pay and the ninety (90)
percent rate of pay for each work day of Position No. 753-013 Waybill Data
Clerk, amount $9.77 per day, commencing July 25, 1985, and continuing five (5)
days per week until corrected."
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 instant claim deals with the proper interpretation of the following provisions of Article XI
which read, in pertinent part, as follows:
"ARTICLE XI - RATE PROGRESSION
Article VIII of the January 30, 1979 National
Agreement and all other local rules governing rate
progression or entry rates are eliminated and the
following provisions are applicable:
Form 1 Award No. 27952
Page 2 Docket No. CL-27457
89-3-86-3-701
Special 1 - Service First 24-Months
Employees entering service on and after the effec
tive date of this Article on positions covered by
an agreement with the Brotherhood of Railway and
Airline Clerks (BRAC) shall be paid as follows for
all service performed within the first twenty-four
(24) calendar months of service:
(a) For the first twelve (12) calendar months
of employment, new employees shall be paid 80%
of the applicable rates of pay (including
COLA).
(b) For the second twelve (12) calendar
months of employment, such employees shall be
paid 90% of the applicable rates of pay
(including COLA).
(f) Any calendar month in which an employee
does not render compensated service due to
voluntary absence, suspension, or dismissal
shall not count toward completion of the
twenty-four (24) month period."
The Claimant has a seniority date of July 25, 1984. At the time of the claim
she was assigned to Waybill Data Clerk position No. 53-103, rest days Saturday
and Sunday, pay rate $97.66 per day. The Claimant took maternity leave from
March 11, 1985, through June 21, 1985. The claim centers on the pay differential between 80% and 90%
stipulated in Article XI(1)(a)6(b). According to the Claimant, the time she
was off on maternity leave should be counted toward employment. According to
the Carrier, it should not be. The Claimant and the Organization argue that
the Claimant was not suspended during her first year of employment; she had
not been dismissed; and she had not taken a voluntary absence as stipulated by
Article XI(1)(f). The Organization argues that pregnancy leave is a medical
disability in accordance with the Federal Pregnancy Discrimination Act, and
that service credits should continue to accrue during periods of pregnancy
leave. The Carrier specifically argues, in denying the claim, that the Claimant "requested" a matern
under the rubric of Article XI(1)(f) as a voluntary absence. The Board is
unpersuaded by the Carrier's line of reasoning because maternity leave requirements are not, evident
federal law which defines pregnancy leave as a disability, and by the Carrier's own Maternity Leave
that "...pregnancy, childbirth, and related conditions (are recognized as) a
medical disability ...(and) (s)eniority and service credits continue to accrue
Form 1 Award No. 27952
Page 3 Docket No. CL-27457
89-3-86-3-701
during periods of absence (for these reasons)
...."
In view of this, the
Carrier was in violation of the Agreement when it did not pay the Claimant
...90% of the applicable rate of pay" after July 25, 1985. The claim is
sustained.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
4;;i
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 6th day of June 1989.
CARRIER MEMBERS' DISSENT
TO
AWARD 27952, DOCKET CL-27457
(REFEREE SUNTRUP)
The Majority correctly finds that maternity leave is to be
treated the same as any other medical disability, and accurately
quotes from the Carrier's Maternity Leave Policy of 1984 which
so states. Our disagreement with the Majority is that it does
not treat maternity leave the same a The Claimant asked, and was granted,
menced March 11, 1985, and ended June
s
any other medical disability.
a leave of absence that com-
e 21, 1985. No medical evi-
dence was provided that such period was medically required.
Claimant wanted the leave to be considered a medical leave.
She should have furnished a statment from a physician indicating
that the length of her leave was medically required - precisely
the same information that would be required in any medical leave
case. We know of nothing in the federal legislation or the
Carrier's Maternity Leave Policy which relieved Claimant of that
responsibility.
M. W. Finger t
W~
~'
R. L. Hicks
M. C. Lesnik
P. V. Varga
9,a~ se
J E. Yost