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.
The Claimant, regularly assigned as a Train Dispatcher, was instead assigned to serve as a Relief Manager on days that would have otherwise been designated rest days. For her service on those days she was not paid the overtime rate of pay.
The record shows that the issue of compensation for regularly assigned Train Dispatchers when they work as Relief Managers is not a new one to the parties. Rather, Form 1 Page 2
they agreed on December 12, 1988 that when employees are assigned to those positions there would be paid a "Relief Managing Train Dispatching rate of pay of $158 per day," subsequently raised to $247.33 "for a 12 hour shift . . . ," which the parties calculated by determining the "approximate average of the positions involved" and deemed to be the "agreed upon rate when (employees) provide relief on such positions." Later, the parties clarified this Agreement stating that the agreed upon rate was due to a need for an "established fixed rate" and that the intent behind the Agreement was " . . . to provide . . . a `daily' fixed rate."
Now the Organization attempts in this claim to have regularly assigned Train Dispatchers paid at a different rate for the periods in question. We decline to order any such result. Rather, the disposition of this claim is driven by the parties' own clear and unambiguous language repeated over time. That language, set forth above, is that employees under these circumstances will be paid at a "fixed" rate. Moreover, to the extent that there might be any confusion, a view that we do not hold, their stated intention was again that in light of various rates in effect for the relief positions in question the employees were to be paid at a fixed rate. Thus, once the Carrier paid employees who served as Relief Managers and paid them at that rate, it complied with the parties' Agreement and intent as to the rate to be paid.
Labor Member's Dissent
To Award 33950 Docket TD-34971
(Referee Perkovich)
However, that is no different than when the parties agreed to daily rates of pay for Assistant Chief Dispatchers and Trick Dispatchers. By Agreement, all Train Dispatching positions have a daily rate of pay.
When the Organization pursued this claim, it was not because there was confusion about whether or not a rate of pay for a Relief Manager Train Dispatching had been established. Rather, it was pursued because the Carrier was requiring the Claimant, a regularly assigned train dispatcher, to work the Relief Manager Train Dispatching on her rest days and then only paying her the straight time daily rate. This was a clear violation of Rule 11 (b), which provides:
Labor Member's Dissent
To Award 33950. Docket TD-34971
(Referee Perkovich)
To escape the effect of such a construction, the Carrier advances two main contentions, the first of which is that the position of Chief Train Dispatcher is not within the scope of the Agreement, and hence is not subject to its terms ....conceding that the Chief Dispatcher, whose position the Claimant was required to fill, was an official and that the position was not within the scope of the Agreement, it does not follow that Claimant acquired the position of Chief Train Dispatcher by temporarily performing the duties of that offce during the absence of its incumbent. The construction contended for by the Carrier implies the concept that a regularly assigned train dispatcher without relinquishing his status as such may, by the act of the Carrier be deprived of the protection which the Dispatchers' Agreement affords him. We find nothing in the Agreement to support this concept or its corollary namely, that of a regularly assigned train dispatcher temporarily performing the duties of a Chief Dispatcher is entitled only to the emoluments incident to the latter position notwithstanding a provision of the Agreement to the contrary."
"If we accept the contention of the Carrier that Read in performing the duties of the position was also excepted, then we would have two chief dispatchers excepted from the position at the same time in direct violation of the Agreement. We are of the opinion that under this rule, so long as the chief dispatcher's position is occupied, the occupant of the position only is excepted from the agreement and any employee relieving him for any cause would be subject to the provisions of the agreement. This construction of the Agreement is supported by Award No. 2905."
"While performing the duties of the Chief Train Dispatcher this relief man did not thereby cease to be controlled by the terms of the contract. He was, in effect, fulfilling its terms ....
On December 26, he worked on his rest day and while the position worked was an excepted one, his assignment was under the terms of the contract and for that day he must be paid at the penalty rate ...."
"Summarized, Award 2905 holds that the plain and unequivocal import of Article 3 (a) of the Dispatchers' Agreement is that a regularly assigned dispatcher is entitled to time and one-half for any work which he may be
Labor Member's Dissent
To Award 33950. Docket TD-34971
(Referee Perkovich)
required to perform for the Carrier on any of the regularly assigned days of rest of his position and that when he works relief for a chief dispatcher on the assigned rest day of his won position he is entitled to such pay. It is our considered opinion the decision is sound and merits continue approval. That in so holding we are only being consistent is evidenced by repeated awards of the Division to the same effect. (See Awards 2905, 2943, 2944, 2986, 3096 and 3344.)
...the fact a dispatcher performs temporarily relief service as a Chief Dispatcher does not result in his becoming a Chief Dispatcher or lose him any rights and privileges under the rules of the Agreement applicable to his regular assignment."
"On two of his regularly assigned rest days, claimant, a regularly assigned Relief Train Dispatcher, at the request of the Carrier filled the position of Chief Train Dispatcher. He was paid on a pro rata basis at the rate for Chief Train Dispatcher. His claim is for the difference of the pay received and pay at the time and on-half rate provided for in Paragraph 2 of Article 3(a) of the Agreement ....
(1) The position of Chief Train Dispatcher is outside the scope of the agreement, and on the days claimant relieved as Chief Train Dispatcher he could not claim the benefit of Article 3 (2) of the agreement ....
...we have held in numerous awards that only the occupant of the position of Chief Train Dispatcher is excepted from the agreement and any employee relieving him for any cause would be entitled to the benefits of the agreement" (Underscoring added.)
Labor Member's Dissent
To Award 33950. Docket TD-34971
(Referee Perkovich)
In the light of a long and imposing series of sustaining awards on this issue ...we feel compelled to adopt the principle which would answer the above question in the affirmative. That is to say, only the occupant of the position of Chief Train Dispatcher is excepted from the Agreement and any employee relieving him for any cause would be entitled to the benefits of the Agreement."
"There is a long line of awards by this board holding that although the occupant of the position of Chief Dispatcher is excepted from the schedule agreement, Train Dispatchers relieving him are entitled to all the benefits of the Agreement. In Award 11569 we said:
`...It is not reasonable to say that when (Train Dispatchers) relieve a Chief dispatcher they are no longer covered by the Agreement. If we consistently held that way, we would be upsetting a normal and reasonable arrangement and practice. We would fiu-ther ignore contract rights to which covered employees are entitled. It is not our function to deprive covered employes of rights and privileges contracted for them by their certified representative. It is, rather, our responsibility to examine the total agreement and apply the facts thereto."'
Claimant was regularly assigned as Night Chief Dispatcher, a position covered by the Agreement. Under Rule 4(a) of the Agreement one of the emoluments vested in Claimant as consideration for his services is...
`Regularly assigned train dispatchers who are required to perform service on the rest days assigned to their position Ail] paid at rate of time and one-half for servi performed on either or both of such rest (Emphasis Supplied)'
Labor Member's Dissent
To Award 33950 Docket TD-34971
(Referee Perkovicb)
This arbitral precedent goes back nearly 55 years. To counter this overwhelming precedent, the Carrier provided absolutely no arbitral Awards to support its position. In fact, there were no Awards at all attached to its Submission to the Board. Nevertheless, the Majority ignored this precedent.
The Majority states that "the disposition of this claim is driven by the parties' own clear and unambiguous language repeated over time". What is this so-called "clear and unambiguous language repeated over time"? The Majority states it as being:
"[the parties] agreed on December 12, 1988 that when employees are assigned to those positions there (sic) would be paid a `Relief Managing Train Dispatching rate of pay of $158 per day,' subsequently raised to $247.33 `for a 12 hour shift . . . ,' which the parties calculated by determining the `approximate average of the positions involved' and deemed to be the `agreed upon rate when (employees) provide relief on such positions.' Later, the parties clarified this Agreement stating that the agreed upon rate was due to a need for an `established fixed rate' and that the intent behind the Agreement was `. . . to provide . . . a `daily' fixed rate."
Labor Member's Dissent
To Award 33950. Docket TD-34971
(Referee Perkovicb)
"Per our conversation Aug 6, 1996 pertaining to the rate of pay for a relief Manager working a 12 hour day. I have agreed on a temporary basis without prejudice or precedence to compensate a dispatcher that works the relief manager's position on a 12 hour day in rotation with the promoted managers as follows;
STRAIGHT TIME FOR 12 HOURS AT THE RELIEF MANAGERS RATE
This would come out to $247.32 for a 12 hour shift which is still well over what a promoted manager makes per day."
"The verbal agreement with Jeff does provide that train dispatchers will be paid time and one-half for the additional 4 hours during the interim until we get the management positions assigned, even on a temporary basis. I am assuming that at least temporary assignment of the management positions will occur in the very near future.
This is being done without prejudice to our position that the relief management rate of pay that has been negotiated encompasses all working conditions of the management position."
"When the agreement was reached to consolidate offices it was also agreed to provide for 4 exempted positions in the new office. After working with this for some time, after the consolidation, it became apparent that there were various rates in effect for the exempted positions and a need to established (sic) a fixed rate for the relief of each of those position (sic) by the regular train dispatchers. That was done and the intent of that agreement was to provide that relief would be done by the regular train dispatchers at a `daily' fixed rate for all exempted `releaved' (sic) positions.
Labor Member's Dissent
To Award 33950 Docket TD-34971
(Referee Perkovich)
It is apparently this statement that the Majority refers to as "Later, the parties clarified the Agreement stating that the agreed upon rate was due to a need for an `established fixed rate' and that the Intent behind the Agreement was `. . . to provide . . . a `daily' fixed rate." Obviously, t characterization is completely wrong. This was not a clarification of the agreement by the parties.
It is clear in reading this statement that Mr. Neff was speaking of "more than 8 hours worked on any given day" and not rest day service under Rule 11 (b) when conveying his impression of the intent of the agreement. This is confirmed by the Carrier it its letter dated November 19, 1997, reproduced as Carrier Exhibit L:
Working "more than 8 hours" in a day was not the dispute between the parties. The Carrier was already compensating those working the Relief Manager Train Dispatching, including the Claimant, four hours at the overtime rate when working a 12 hour shift, albeit without prejudice to its position.
It is worth noting that later in the on-property record, Mr. Neff clarified his earlier statement by stating "that there was no intent in this agreement to override the other provisions of the schedule agreement". There is no evidence to the contrary.
Given the vast arbitral precedent in support of the Organization's position and the parties actual "clear and unambiguous language repeated over time", the Majority's decision is errone and holds no precedential value whatsoever. Therefore, I dissent.