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.
Claimants in this case hold seniority as Machine Operators and Foremen assigned to the gangs identified above. The record indicates they were, at the time of the claims, regularly required to assemble at designated points and travel a minimum of 30 minutes to their work sites. Machine Operator Claimants assert that they are entitled to pay for such travel time because they are directed to transport their own tools during such periods. Foremen contend they are required to tend two-way radios during; travel to the work site.
Resolution of these claims turns on analysis of two distinct fact patterns as well as an understanding of Article VII of the July 28, 1992 Agreement and Rule 23 (c) as interpreted by several prior Awards. Article VII - WORKSITE REPORTING, reads as follows:
Two separate claims were processed on the property and consolidated for presentation to this Board. In the first, Machine Operators argued that they were directed by bulletin to carry their personal tools consisting of a screwdriver, pliers and an adjustable wrench to and from the vehicles used for transport to their work sites beginning April 7, 1993. In the second, Foremen assert they were required to operate two-way radios during such transit.
With respect to Machine Operators, the Organization first invites our attention to the interpretation of Rule 23 (c) in Award 37 of Special Board of Adjustment No. 1016 involving the same parties and similar circumstances. It suggests that decision is res judicata in this instance.
The Board finds no valid basis for such a conclusion. Award 37 interpreted Rule 23 as it existed prior to the negotiated changes incorporated in the February 28. 1992 greement. That Award held that overtime pay was required for employees directed to carry their personal tools while traveling to or from vehicles used to get them to their job sites based upon a finding that "It1he rule as written contains no qualifying language that would permit the term 'tools' to be read as referring only to 'Company tools."' But the 1992 Agreement hatched important differences that distinguish the current Rule. Thus, in the context of this dispute. Award 37 has lost its saliency.
The issue of free or paid travel time for production units was clarified by the terms of the July 28. 1992 Agreement and Letter No. 13 therein. Article V11 continued to state in pertinent part that paid time for production units working away from home begins after 30 minutes of travel time to the work site and ends 30 minutes after arrival Form 1 Award No. 32615
back at the camp car/lodging facility. Letter 13 established two specific exclusions to the free travel time set forth in Article VII: senior Foremen and Drivers of production units. Letter 13 reads in part:
Carrier asserts that recognized canons of construction demand that Article 23 be read in conjunction and harmonized with Letter No. 13, and its meaning determined not in isolation but in relation to all other parts of the Agreement. In that process, if possible, reasonable effect must be given to all provisions of the contract. Since the parties agreed to only two express exceptions to the 30 minute free travel periods, Carrier says it is clear that they intended no other implied exceptions.
We are compelled to agree. The Board finds that the Claimants' argument disconnects Article 23 from context. and fails to consider or reconcile Letter 13 with its terms. If, as the Organization asserts. Machine Operators and Foremen are to be paid for travel time, what possible meaning can this Board give to Letter 13, which identifies only two classes of employees to which such pay is extended.
The Organization cites Awards 91 and 98 (consolidated cases hereinafter referred to as Award 91) of Special Board of Adjustment No. 1016 as additional support for its position here. The Board there expressed the well-established principle that precedent in this Division must be respected. and accordingly placed significant reliance on Award 37 in sustaining the claims it considered. Since we decline to follow Award 37 for the reasons stated above, .Award 91 is similarly distinguished and found not controlling on the issue before this Board.
First. as indicated, Award 37 dealt with claims governed by a materially different Agreement. To the extent Award 91 relies on the inapposite Award 37. it is in palpable error. More significantly, Award 91 found merit in several pay claims by Machine Operators and others based upon facts obviously distinguishable from the facts here. The claim in that dispute characterized the violation as failure to pay for time spent in Form 1 Award No. 32615
"handling and carrying tools." Award 91 rests on findings that: (i) services were performed en route to the job site, and (ii) neither Article VII nor Letter 13 modified the terms of Rule 23 "that require travel time be counted as work time when employees perform some service while traveling." But no Machine Operator Claimant in this case maintains that he performed services or "handled tools" without pay while traveling to his work site. Claimants were not asked to use implements or devices to perform work en route, but to carry light tools to work with their safety equipment. To apply Award 91 to the situation complained of here would be to stretch that Award to its breaking point. If the Organization wishes to secure pay for its members for the very specific activity of carrying light tools to work while not using them - facts not adjudged by .ward 91 - it must secure that result through bargaining.
One further observation regarding Award 91 warrants mention in view of the outcome here, which may facially conflict with prior authority. Award 91 determines that Article VIl and Letter 13 do not modify Article 23, but rather Article 12 (a) which deals with starting times. (". . . I tIhere is no indication that Article VII was intended to alter other compensation rules, such as Rule 23. . .") Whatever evidence may have supported that raw conclusion is not revealed, nor was any produced in the case handling of this dispute. In the context of this case, the normal rules of interpretation would require the party claiming non-application of the exception to prove that case. Here that means the Organization should be required to produce persuasive evidence. for example. in the form of bargaining history, to establish that non-working Machine Operators were intended to be paid while traveling despite the contrary terms of Letter 13, or alternatively, that that Letter was in no way intended to modify Article 23. In the absence of such proof. Award 91 turns the normal canons of construction upside down, misallocating the burden of proof in the process. We reject that approach as inconsistent with both established canons of construction and vast tracts of Third Division precedent. Given those deficiencies. to give Award 91 precedental effect would exemplify stare decisis run amok. Lastly, we read Award 106, dealing with damages issues arising out of Awards 91 and 98, as irrelevant to the issues before us.
Are Foremen entitled to compensation for keeping their radios on while en route to their work sites? As with the issue of Machine Operators and the use of tools, the Board finds on this record no evidence either that the Carrier required that Foremen operate radios in transit to their work sites, or that they actually did so. The current language of the Agreement does not prescribe pay for Foremen who are not directed to. but do leave their radios on in transit without actually using them. Again, Article VII Form 1 Award No. 32615
establishes a 30 minute period of travel time to and from the job site without pay except for the senior Foreman of the production gang and the Drivers. Neither Third Division Award 31529 (sustaining pay claims under other rules for flagging trains during lunch periods), nor Third Division Awards 18513 or 20914 (sustaining pay claims for being required to "stand by" during assigned meal periods) represent relevant contrary authority. Under the instant circumstances, the Board cannot hold the Carrier liable for pay obligations to Foremen who merely kept their radios on during travel.
This Board, after consideration of the dispute identified above. hereby orders that an award favorable to the Claimant(s) not be made.
ORGANIZATION MEMBER'S DISSENT
TO
AWARD 32615, DOCKET MW-32062
(Referee Conway)
This dispute involved the Carrier's failure and refusal to compensate employes for work performed before and after their regularly scheduled work period. The s here because the reasoning of the arbitrator in this case is totally misguided and fundamentally fla fundamentally flawed reasoning of this award serves to reject arbitral precedent established by two here. Namely, Award 37 of Special Board of Adjustment (SBA) No. 1016 (Blackwell) and Awards 91 and 98 of SBA No. 1016 (Fletcher). Despite the existence of these two (2) prior decisions, this arbitrator, who is a neophyte in railro to reject the prior findings of two (2) well-respected and longtime railroad industry arbitrators wh years of combined railroad industry arbitration experience to dish out his own brand of industrial justice. Such action does nothing to promote the timely and orderly resolution of similar claims and grievances. It only serves to foster regeneration of claims. .Consequently, this award is palpably e as precedent.
The claims involved here were initiated and progressed on the property on the basis that the carrier failed to compensate the _.nvoived Claimants machine operators and foremen) in accordance aitn Rule 23(c;. The machine ooerators were required by pulletin ~o possess and carrv hand tools to and -from the work site each workday. The foremen were required to tend two-way radios during travel to and from the work site each workday. In this instance, the arbitrator denied the claims on the basis of his determination that Rule 23 (c) was inapplicable in light of Article VII of the ,:uiy 28, 1992 Agreement and Letter No. 13 dated July 28, 1992. According to this arbitrator, Rule 23 (c) could not be reconciled with Letter No. 13 dated July 28, 1992, which specified that only senior -foremen and drivers would be exempt from the free travel ~:me provisions of Article VII of the July 28, 1992 Agreement. The problem here is that these claims were NOT initiated or presented cn the basis that the Carrier violated Rule 12 - STARTING AND END:NG TIME AND CHANGES THEREIN t.^.e part of the Carrier to compensate the Claimants for time worked under the provisions of Rule 23(c). There are two ,2) separate and distinct provisions under this Agreement. That _s precisely why Rule 33 (c; does not have to be melded or reconciled with Article ':'II or Letter No. :3. It operates separately from Rule 12, Article ',III and Letter No. 13. Article VII specifically modified Rule 12, not Rule 23(c). Art=cle VII by its very application was a modi:cst:c^ of the STARTING TIME RULE whic Organization Member's Dissent
There are at least two (2) glaring problems with the above determinations. The first problem involves the Board's finding that _n relation to Award 37 of SBA No. 1016, "*** Award 91 is similarly distinguished and found not controlling on the issue cefore this Board." That is plainly an erroneous determination since the Findings of Awards 91 and 98 were NOT solely dependent :oc.^. =.^.e -:ndiras cL award 37 of SBA No. 1016. :n tn:s connection, =::e ispute decided -,' ; Award ;7 of SBA No. _016, :._ -.eieree 31ack.vvei:, centered mainly on whe mach-,ne operators were covered by Rule 23(c). Referee 3lackweil Determined that they WERE covered by Rule 23(c) and that -t was _mpreper '-or the carrier not to compensate machine operators for t;me worked when they carried such tools to and from work. Award 37 of SBA No. 1016 was rendered on December 27, 1990. In the disputes decided by Awards 91 and 98 of 3iaain failed to comply with Rule 23 (c) when it failed to compensate
From the above, it is clear that Arbitrator Fletcher correctly followed the precedent establishe "personal tools". From there on, however, Arbitrator Fletcher tackled and REJECTED the Carrier's contention that Article VII and Letter No. 13 excused it From payments required under Rule 23(c). arb:tratcr Fletcher determined correctly that there was .no need to reconcile Rule 33 with Article VII or Letter No. '_3 because Rule 23 (c) dealt with compensation for time worked, not merely travel time. For this arbitrator at this late 3uncture to assail the findings of Awards 91 and 98 is unconscionable, especially, in light cf the fact that the Carrier Member's only response to the findings of Awards 91 and 98 was the notation "I dissent".
The second problem with this award is the fact that _t incorrectly determined that:
point. _**_nce again, this arbitrator evidences his misunderstanding of this dispute. 7'he basis of these claims, as was the case in the earlier disputes decided by Awards 37, 31 and 98 of SBA No. _016, was that organization Member's Dissent
the Claimants were not properly compensated via Rule 23 (c) for handling tools to and from th Arbitrators Blackwell and Fletcher both interpreted the clear and unambiguous lanauage of Rule 23 (c) to apply to precisely the type of situations involved in the instant disputes. There is plainly no justification for the determination that the application of Award 91 of SBA No. 1016 to the instant disputes would have been a ,stretch". In fact, there could be no better candidate for the application of stare decisis.
Finally, another problem with this award is that even if you follow and accept its faulty logic, those Claimants who were working as the senior foremen on the ga would still have been entitled to compensation for time spent traveling to and from the work site each day under the terms of Letter No. 13. Said Letter specifically stipulates that:
Apparently, this arbitrator became so enamored and bent on .ement:ng iris cwn brand cf industrial justice that ::e ailed __ _.. =oilow :.;s ,:wn =easoninq.
Frcm the above, it =s clear that this award :s so mangled and =wisted that :t cannot be considered as valid precedent in any :,.^er ease. For -he above reasons, ? dissent.
