Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32204
Docket No. TD-32714
97-3-96-3-14
The Third Division consisted of the regular members and in addition Referee John
C. Fletcher when award was rendered.
(American Train Dispatchers Department/International
( Brotherhood of Locomotive Engineers
PARTIES TO DISPUTE:
(Burlington Northern
STATEMENT OF CLAIM:
"This claim is for payment of the difference between straight time and time
and one-half for one hour for required attendance of CTWC training
classes in May 1994. Dispatchers were required to attend these training
sessions after already performing eight hours of train dispatching service
on the days involved. The dispatchers involved were paid the straight time
rate of pay instead of the overtime rate of pay as required by Article 2 (b)
of the agreement between the Organization and the Carrier. Article 2 (b)
states `Time worked in excess of eight (8) hours on any day, exclusive of the
time required to make transfer, will be considered overtime and shall be
paid for at the rate of time and one-half on the minute basis.' Therefore the
Carrier will now compensate the dispatchers involved by providing one-half
hour additional pay for attending the required CTWC training classes."
FINDINGS:
The Third 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.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 32204
Page 2 Docket No. TD-32714
97-3-96-3-14
During May 1994, the Carrier began holding one hour training classes for all
Agreement covered employees on a computer system called CTWC, an acronym for
"Computer Track Warrant Control." Ninety-two Dispatchers, Claimants in this matter,
attended these training sessions, on various dates, after the completion of their regular
assignments. Carrier paid each attendee an additional one hour's pay at straight time
rates. The Organization maintains that under the application of Article 2(b) Dispatchers
participating in these sessions should have been paid at time and one-half rates,
contending that they had been required to perform service in excess of eight hours on the
days involved.
This basic issue involved in the Organization's claim is not new to this Board.
Twice before the Organization has brought claims to this Division contending that its
Agreement was violated when Carrier paid Dispatchers at the pro-rata rate instead of
at the overtime rate, for attending training classes on their rest days or after working
their regular assignments. In both cases, Third Division Awards
20707
and
30047,
the
claims were denied. The Board has reviewed Awards
20707
and
30047
and do not rind
them to be in palpable error. They will be followed here and the claim now before this
Board will be denied.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 17th day of September 1997.
Labor Member's Dissent
Third Division Award No. 32204
Referee Fletcher
The decision of the majority in this case is wrong. Not so much because they
did not find Award Nos. 20707 and 30047 to be in error, but because the award
uses Awards 20707 and 30047 as the basis for denial when the matter in Award
32204 is different.
The question in this case was, what is the appropriate compensation for train
dispatchers when they are required to remain on duty after the expiration of their
regularly assigned hours? If they are required to remain on duty (i.e., remain in the
service of the Carrier continuous with their regular hours), in excess of eight hours,
they must be paid for that extra on-duty time at the overtime rate. The only
exception to the requirement that time worked in excess of eight hours must be paid
at the overtime rate. is that found is Article 2(c) which refers to "transfer time".
Article 2(c) makes it clear that if a train dispatcher is required to remain in
charge during the period of time it takes to transfer all information to his relief. he is
not paid for that time. However, this Article also makes it clear that "transfer time"
is the only exception to the accumulation of overtime pay when a train dispatcher
remains on duty. It is a well accepted principle of contract construction that where
one exception is expressed within a contract, no other exception can be implied.
Page - 2
LM's Dissent
Award No. 32204
Each claimant in this case was required to remain on duty and attend a CTWC class
after the expiration of their tour of duty. Under the circumstances of this case, it
does not matter why the Carrier required this additional hour of duty. Accordingly,
the question of whether the on-duty time was work or service, and the question of
whether their was a mutuality of interest in the claimant's attendance at these classes
(as was the case in 20707 and 30047) is immaterial. What does matter is the clear
and precise agreement language that the parties crafted and how it applies to the
Carrier's requirement that these claimants remain on duty after their regular hours.
That language was ignored by the majority in this case.
I dissent.
L. A. Patmelee,'Labor Member