Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32551
Docket No. TD-32785
97-3-96-3-102
The Third Division consisted
of
the regular members and in addition Referee
John C. Fletcher when award was rendered.
(American Train Dispatchers DepartmentAnternational
( Brotherhood
of
Locomotive Engineers
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM:
' "The Burlington Northern Railroad Company (hereinafter referred to as
the Carrier) violated the current effective agreement between the Carrier
and the American Train Dispatchers Department, (hereinafter referred to
as the Organization) Letter
of
agreement dated May 31, 1973 in
particular, when on Sept. 26, 1994, Dispatcher G. R. Amack was not called
to perform service as Senior qualified dispatcher available under the hours
of
service law. Junior Dispatcher W. L. Gwyer was used instead at the
overtime rate.
The Carrier shall now compensate dispatcher G. R. Amack eight (8) hours
at the overtime rate account he was entitled to this work but was not
called."
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.
Form I Award No. 32551
Page 2 Docket No. TD-32785
97-3-96-3-102
Parties to said dispute were given due notice of hearing thereon.
The Organization asserts Carrier improperly called a junior Train Dispatcher
to perform overtime service on September 26, 1994, when Claimant was available to
work. Carrier does not deny that its failure to call Claimant for this service was a
violation of the Agreement. It argues, however, that Claimant is entitled to
compensation at the straight time rate of pay, rather than the overtime rate as claimed
by the Organization.
The Board is cognizant of the vast arbitral precedent of awarding pay at the
overtime rate when an employee is improperly denied the opportunity to perform service
that would have entitled him to compensation at such a rate of pay, notwithstanding the
fact the employee performed no service. Carrier, however, argues it should not be
bound by that precedent in that there is a past practice on this property of making such
payments at the straight time rate. According to the Carrier, there has been a systemwide practice, at least since 1972, of settling claims of this nature with the Organization
at the straight time rate.
While the Agreement sets forth the basis of pay had Claimant been called to work,
it says nothing about how he is to be paid when he is improperly denied the opportunity
to work. This Board, in remedying similar situations on other properties, has given its
interpretation of a "make whole" remedy in the absence of specific language in the
Agreement. However, where the Agreement is either silent or ambiguous, the Board
may draw upon an existing and established past practice on a particular property.
Where we find such a past practice to exist, it should be given deference over how we
have decided cases on other Carriers. To do otherwise would upset the labor relations
equilibrium the parties have established between themselves.
After reviewing the evidence in this case, The Board is satisfied there is a
sufficient past practice on this Carrier, and with this Organization. that claims of this
nature are routinely settled by payment for the hours the employee would have worked
at the straight time rate of pay. Accordingly, we will direct that Claimant be
compensated eight hours pay at the straight time rate of pay if such a payment has not
already been made.
Form 1 Award No. 32551
Page 3 Docket No. TD-32785
97-3-96-3-102
AWARD
Claim sustained in accordance with the Findings.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 29th day of April 1998.
Labor Member's Concurrence and Dissent
To
Third Division Awards 32551, 32552, 32553, 32554 and 32555
Dockets TD-32875, 32787, 32860, 32892, 32893
Referee Fletcher
To the extent that the claims in the above disputes were sustained, concurrence with the findings
of the majority is warranted. However, to simply state "I dissent" wholly understates my dismay
regarding that portion of the decisions pertaining to the payment of overtime.
In each case, an employee was improperly by-passed for an overtime assignment. The carrier
admitted the violations. Absent the violations, each claimant would have been
afforded their
rights
under the agreement and compensated at the overtime rate of pay.
In defending against the claims, the carrier asserted that the straight time rate of pay was
appropriate reparation for its admitted violations of the agreement. Further, the carrier asserted
that there was an on-property practice which supported such a conclusion. This Board has
consistently recognized the burden assumed by a party asserting a past practice as an affirmative
defense against a claim.
Third
Division
Award
No. 13720
"Carrier defends by alleging past practice ...lt offered no evidence... We
have held on many occasions that mere assertion is not proof. Award 12942.
Carrier had the burden of proving its afrmative defenses."
Third
Division
Award
No. 14732
"Innumerable awards of this Board have stated that the burden of
proving a customary practice is upon the parry asserting same."
Third
Division
Award
No. 14583
"it appears that the Carrier is a victim of one of its own much used
defenses; to wit: failure to satisfy the burden of proof ...the carrier has failed in
the handling on the property, to meet the burden of proof which would be
necessary to sustain the allegations presented as a defense to the claim."
Third
Division
Award
No. 29033
"It is axiomatic that the parry asserting the practice has the burden of
proving the requisite elements of its existence."
The Referee in this case is no stranger to the well accepted principle that the party raising an
affirmative defense must prove it.
Page - 2
Labor Member's Dissent
Awards 32551, 32552, 32553, 32554, 32555
Third Division Award
No. 29703
"When Carrier raises an `emergency' defense as license to deviate
from the basic requirement that forces subject to the scope of an Agreement are
entitled to perform work subject to the Agreement, it is obligated to come
forward with sufficient evidence establishing that an emergency did. in fact,
exist."
Third Division Award
No. 29696
"Carrier has defended its use of a District 13 employee on District 14
on the grounds that it was emergency work. Carrier is obligated. when relying
on an emergency excuse, to demonstrate that an emergency actually existed."
So, what evidence was there in the record
of
these cases that convinced the Referee that there
was indeed a past practice on this property
of
only paying claims at the straight time rate? Well,
don't look to awards for the answer because there is no discussion about the evidence. So let's
examine the record between the parties.
In the handling
of
the disputes. the Carrier made its assertion in letters by simply stating:
"The appropriate remedy for payment of overtime work not performed under
the agreement is payment at the pro rata rate. which has long been the practice
on this property."
(Carrier letter of 2/ 19/95 - Award
No.
32551. Carrier letter of 4/13/95 - Award
No. 32554 and Carrier letter of 4/ 13/95 - Award
No.
32555)
"...the past practice on this property for disposition of similar disputes is
settlement at the straight time rate."
(Carrier letter of 3/14/95 - Award
No.
32552)
"...Claimant was nevertheless compensated at the straight time rate as has been
the practice on the property for work not performed."
(Carrier letter of
I 1/2/94
- Award
No.
32553)
These were only bald assertions by the carrier - not evidence
of
a past practice. So, the
Organization challenged the carrier to bring forward real evidence in support of its asserted past
practice.
-2-
Paee - 3
Labor Member's Dissent
Awards
32551, 32552, 32553, 32554. 32555
"Also, contrary to your assertion. I am not aware of any past practice on this
property for disposing of similar claims by allowing only straight time. As the
party asserting such a practice, you assume the burden of proving it. This you
have not done. (ATDD Letters of 9/26/95 - Awards 32552, 32553, 32554 and
ATDD Letters of 10/18/95 - Award 32551 and 32555)
The carrier then responded in the lowest form
of
one upmanship recently witnessed by this writer.
In its zeal to support it position, the carrier made reference to non-referable claim settlements
that allegedly existed.
"...the Carrier is ready, willing, and able to present claim settlements between
the parties as evidence of the past practice on this property wherein payment
was sought at the punitive rate account not called for overtime and ultimately
settled at the straight time rate of pay. Moreover, the Carrier is also able to
present other settlements wherein the Organization initially appealed claims for
only the straight time rate involving similar disputes. However, as is custom on
this property, all of these claims were settled on a non-referable basis."
(Emphasis added to Carrier letter of I 1 /22/95 - Award
No.
32553 and Carrier
Letters of 11/30/95 Award
Nos.
32551, 32552, 32554, 32555)
Thereafter. the carrier sought the Organization's permission to bring forward its alleged evidence
of
settlements.
If.
as the carrier readily admits, settlement
of
claims was reached with the
Organization
on
a non-referable basis, it
is
entirely improper to then reference the settlements at
all. let alone as evidence
of
some sort
of
practice between the parties. Even
if
the settlements
between the parties did exist (and the record
is
devoid
of
any real evidence of such). they should
not be considered in the resolution
of
a matter before this Board.
Second Division Award
No.
11282
"Numerous settlements of Claims were put in the record and said to be
determinative of the jurisdictional issue. This Board rejects this supposition. If
Boards were to utilize settlements to determine present controversies. the
settlement process would be irrevocably dampened."
.
Third Division Award 30719
"It is a long-established tradition, in this and other arbitral forums. that prearbitration settlements are not per se dispositive of similar issues. and that
holding so would serve to discourage either party from withdrawing or
otherwise settling matters prior to adjudication by arbitration.."
-3-
Page - 4
Labor Member's Dissent
Awards 32551, 32552. 32553. 32554. 32555
Fourth Division Award No. 4906
"First. this Board will not respond to the arguments and issues involved in the
negotiations and settlements made on the property. They have no standing
before us as settlements are neither admissions of agreement violations, nor
admissible probative evidence. Over and over again, this Board has held to the
unshakable Premise that prior settlements, offers or compromises will not be
introduced into disputes as such might discourage future settlements of claims.
Consequently, they have no bearing whatsoever on the claim at bar (Fourth
Division Award 3829: Third Division Awards 28844, 26336. 21075: Second
Division Awards 11101. 5864)." (Emphasis in original)
Turning for a moment to the carrier's other so-called evidence of a practice. there were
statements included in the record from carrier officers concerning the payment of overtime versus
straight time in the settlement of claims. The problem is that the carrier officers' statements again
reference the
settlement
of claims.
which.
as shown above. are inadmissable before this Board. In
addition. the Organization's present and past General Chairmen made statements that directly
contradicted the carrier officers' statements. At a minimtun. even if the issue of prior claim
settlements was a proper topic of review, this left the Board with conflicting evidence concerning
the issue of a past practice. This Board functions as an appellate body and it has no way of
resolving evidentiary conflicts or factual disputes. (Third Division Award No. 28790). Since the
carrier raised the issue of a past practice as an affirtrlative defense. it alone shouldered the burden
of proof on this point.
Third Division Award No. 26817
"When confronted with an irreconcilable conflict over a material fact. we must
resolve the conflict against the party holding the burden of proof."
(Emphasis added)
Award No. 2. Public Law Board 2433
"...this Board reminds the parties that a finding of a valid practice to such effect
can only be made if the party relying thereon is able to show with probative
evidence that the alleged practice has been clear and clearly understood. has
been mutually understood for a reasonable long period. and has been approved
by responsible high officers on both sides." (Emphasis added)
Page -
Labor Members Dissent
Awards 32551. 32552, 32553, 32554, 32555
So. once again. what evidence of probative value was it that caused the Referee to find a practice
of clear understanding between the parties that existed for a reasonably long period of time and
was properly presented to this Board? The answer is simple - there was none. There were only
'he vague and unsupported assertions of the carrier.
These decisions make a mockery of well established Board precedent regarding the burden of
proof assumed by a party asserting a practice, and the rejection of settlements between the parties
as dispositive of issues brought to this Board. On this basis, these awards are palpably erroneous
and set no precedent whatsoever.
I dissent to these faulty decisions.
L. A. Parmelee. Labor Member
u w.rua~wroacsrnumasromnfai..pa
-5-
Carrier Members' Response
to
Labor Member's Concurrence and Dissent
to
Third Division Awards 32551-32555
(Dockets TD-32875, TD-32787, TD-32860, TD-32892, TD-32893)
(Referee Fletcher)
These disputes were submitted to this Board on the Organization's claim that each of
the Claimants was entitled "by contract" to compensation at the time and one-half rate.
As the Organization has noted at page 2 the Carrier did deny the claims on the basis
of past practice. But that is not the full breadth of the Carrier's position. In the Carrier's
November 30, 1995 reply (docket TD-32875) we find:
"...once the alleged violation was brought to the Carrier's attention, it acted in
good faith by compensating Claimant at the straight time rate, in accordance
with both the Agreement and P act~nractice on this pro,pertv...
First, the overtime rule stipulates that the time and one half rate is paid only
when work or service is performed:
ARTICLE 2(B) OVERTIME
Time worked in excess of eight hours ....
A RTICLF 2(D) CA LI -S
....a regularly assigned train dispatcher called to perform service. ..shall be paid
actual time for such stayicE...
ARTICLE 3(b),
CC
~.T~____~RVIrF ON REST DAYS
A regularly assigned train dispatcher required to perform service...will be paid
at the rate of time and one-half for service performed..."
Following this citation of contract language support on the property there was a citation
of several Awards in support submitted to this Board. See Third Division Awards 3955,10990,
30639, 9748, 7242, 7110, 6019, 6158, 6444, 6562, 6750, 6854, 6875, 6891, 6974, 6978, 7030, 7079,
7100, 7105, 7138, 7203, 7222, 7239, 7288, 7293, 7316, 7324, 7827, 7858, 8414, 8415, 8531, 8533,
8534,8568,8766,8771,8776,9393,9489,9566,9749,9811,9823,10033,10070,10125,10224,
12135, 13034, 13125, 13165, 13191, 13697, 13837, 13992, 14088, 14149, 14174, 14238, 14464,
14472, 14513, 14707, 15008, 15888, 16033, 16338, 16372, 16376, 16430, 16796, 16829, 17745,
18691, 18942, 19083, 19248, 19605, 19814, 19884, 22071, 26340, 26534, 27088, 27606, 27701,
27973, 28168, 28180, 28181, 28192, 28231, 28277, 28990, 29349, Second Division Awards 6843,
Carrier Members' Response
Award 32551-555
2
6891, 6892, 6988, 6989, and PLB 588 Awards 19, 20, 24, 28, 29, 30, 31, 32, 33, 34, 37, 38, 45.
(These last decisions involved the same parties.)
Both by reference to specific contract provisions and to a wealth of precedent for the
payment of the straight time rate for work not performed, the Carrier backed up its denials.
Next, it was unrefuted in the on-property handling that Carrier had a practice going
back to 1963 (or seven years before the inception of BN) where it had not paid the overtime
rate for work not performed. This practice was supported with 9 statements by supervisors.
The Organization responded with a statement of the former General Chairman that claims
were filed for the overtime rate but no evidence was produced by the Organization that would
show that any claim for work not performed had been paid for at the 1'/t rate.
At page 3 of the Organization's Concurrence and Dissent, he quotes the Carrier's offer
to produce non-referable claim settlements to support its position. However, he failed to quote
the rest of that paragraph which stated:
"Please advise if you are agreeable to allowing these settlements to become part
of the record and thus satisfy your request that the Carrier prove that such a
practice existed on this property."
The Organization refused.
Given this wealth of material submitted in response to the Organization's claims, it is
troubling that the Organization finds fault with the decision rendered. There was no evidence
of a payment made with this Organization that upheld its contention of payment at the time
and one-half rate for work not performed in the entire record.
The first and really the most basic requirement in the arbitration of disputes in this
industry, is that the Organization mint present sufficient facts and contract support to give
credence to its claim. In this matter, the Organization NEVER submitted contractual support,
never refuted with evidence the Carrier's statements, never presented any documentation that
would substantiate its claims. It is noted at page 4 of the Concurrence and Dissent that this
Board cannot resolve evidentiary conflicts. That is correct But there must be something more
that the simple assertion "not so" and a plea for "equity" to sustain a claim.