Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37665
Docket No. MW-36614
05-3-01-3-140
The Third Division consisted of the regular members and in addition Referee
Steven M. Bierig when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and
refused to properly compensate system gang employe T. W.
Knapp for the period beginning November 1 through
December 15, 1999 (System File UPSG2748T/1224117).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant T. W. Knapp shall now receive compensation
payment in the amount of ninety-four dollars ($94.00)."
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. 37665
Page 2 Docket No. MW-36614
05-3-01-3-140
The facts of this matter are not in dispute. We note that this is a companion
case to Third Division Award 37667. On the dates pertinent hereto, the Claimant
was regularly assigned to a position on a system gang and had previously met the
requirements for the $1.00 allowance provided by Section 7 of the August 1, 1998
Consolidated System Gang Agreement.
The issue in this case involves the interpretation of Section 7 of the August 1,
1998 Consolidated System Gang Agreement, which reads, in relevant part, as
follows:
"Section 7.
(A) Employees filling any Group 20, 26 or 27 position(s) for a period
of six (6) months or more as specified hereinafter, will receive one
dollar ($1.00) for each hour they received straight time
compensation during the entire six-month period and beyond as
applicable. This one dollar ($1.00) allowance is not subject to future
general wage increases or cost of living allowances unless agreed to
otherwise. . . : '
The Organization contends that the Claimant is entitled to $1.00 per hour for
each hour for which he was compensated, including holidays, vacation days and
personal days. It contends that the plain language specifically provides that the
$1.00 shall be paid not just for time worked, but for all hours compensated.
Conversely, the Carrier contends that the burden is on the Organization to prove
that the intent of the parties was that all hours were to be considered, and not just
those worked. The Carrier contends that the matter has already been resolved by
Public Law Board No. 6430, Awards 2 and 4.
Specifically, the determination in those Awards is as follows:
"The present dispute involves a disagreement between the parties
about the meaning of the term `straight time compensation' in
Section 7 of the Consolidated System Gang Agreement. In
particular, the Organization asserts that the clause `straight time
compensation' requires the Carrier to pay eligible employees one
Form 1 Award No. 37665
Page 3 Docket No. MW-36614
05-3-01-3-140
dollar per hour for holidays, personal leave, and vacation that derive
from the actual hours that such employees work in any Group 20, 26
or 27 position(s) for a period of six (6) months. In contrast, the
Carrier maintains that the clause `straight time compensation' does
not require such payments because `straight time compensation'
only covers hours that such employees actually work. The Carrier
adds that the parties knew how to provide greater precision when
they intended to extend certain benefits as reflected in Rule 39(e),
which relates to per diem allowances. The Carrier therefore reasons
that the absence of such explicit language in Section 7 precludes a
finding that Section 7 extends to holidays, personal leave, and
vacations.
A careful review of the record indicates that the clause `straight time
compensation' is silent in this regard. As a result, the clause
'straight time compensation' also is arguably ambiguous because it
is susceptible to either the interpretation offered by the
Organization or the interpretation offered by the Carrier. No other
evidence set forth in the present record provides suitable guidance to
resolve this uncertainty. In the absence of greater clarity in the
record, this Board lacks the authority to create, devise, or formulate
a proper meaning or interpretation for the clause `straight time
compensation' in Section 7. Such a determination is a matter for
collective bargaining, not arbitration. As a result, the Organization
necessarily failed to meet its burden of proof in the present case. . . :'
After a review of the evidence and the positions of the parties, the Board finds
that the Organization has not been able to meet its burden of proof. We agree with
the Carrier that the same matter has been addressed by Public Law Board No. 6430.
While we agree that there are minor differences between the cited cases and the
instant case, they are not sufficiently distinguishable to modify the result. The claim
is, therefore, denied.
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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 21st day of December 2005.