Form 1 NATIONAL
RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37928
Docket No. TD-38235
06-3-04-3-155
The Third Division consisted of the regular members and in addition Referee Ann
S. Kenis when award was rendered.
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(BNSF Railway Company
STATEMENT OF CLAIM
_
"The Burlington Northern Santa Fe Railroad Company (hereinafter
referred to as `the Carrier') violated the current effective agreement
between the Carrier and the American Train Dispatchers Department,
Brotherhood of Locomotive Engineers (hereinafter referred to as `the
Organization'), Article 18 and the Memorandum of Agreement dated
March 5, 1974, Item 2 in particular, when on October 12, 2002, the
Carrier allowed and/or required train dispatcher S. J. Merrill to
protect a position other than her assigned position, reporting for
service subsequent. to her assigned hours, and failed to provide the
proper compensation for changing positions at the direction of proper
authority."
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. 37928
Page 2 Docket No. TD-38235
06-3-04-3-155
The Claimant was regularly assigned to a relief Assistant Chief Dispatcher
(ACD) position in the centralized dispatching center in Fort Worth, Texas. On Friday,
October 11, 2002 the Claimant worked the last four hours on the 2nd trick South ACD
position and then worked on the 3rd trick South ACD position for eight hours getting
off at about 6:30 A.M. On the claim date, Saturday, October 12, 2002, her regular
assignment was a 1st trick ACD position with a starting time of 5:30 A.M. However,
she was held off her 1st trick assignment and used to work a 3rd trick ACD position
that same day, for which she was paid eight hours at the overtime rate, in accordance
with Article 2(e) which states: .
"ARTICLE 2 - (e) SERVICE ON POSITIONS OTHER THAN
SENIORITY CHOICE
An assigned train dispatcher required to work a position other than the
one he obtained in the exercise of his seniority, except an assigned train
dispatcher who is used on the position of chief dispatcher, or assistant
chief dispatcher, shall be compensated therefore at the overtime rate of
the position worked; however, except as provided in Article 18, no
additional payment shall be made to such train dispatcher due to not
having worked his regular assignment."
The Organization filed the instant claim, contending that the Claimant sustained
a "loss of time" when held off her first shift assignment and should have been
additionally compensated pursuant to Article 18, which provides as follows:
"ARTICLE 18 - LOSS OF TIME IN CHANGING POSITIONS
Loss of time on account of Hours of Service Law, or in changing
positions by direction of proper authority, shall be paid for at the
straight time rate of the position on which service was performed
immediately prior to such change. Loss of time in exercising seniority
will not be paid for."
The Carrier's denial of the claim is based upon its contention that the Claimant
suffered no loss of time on the claim date. Because the Claimant worked at the
overtime rate of pay on October 12, 2002, it is the Carrier's position that Article 18
does not apply and the Claimant is not entitled to any additional compensation.
Form 1 Award No. 37928
Page 3 Docket No. TD-38235
06-3-04-3-155
The interpretation and application of Article 18 have been addressed before on
this property and others. The Organization's position is exemplified in Third Division
Award 7403, where .the Board held:
"As to the merits of the instant claim, this Board has repeatedly held
that where an employe has regularly assigned hours and is directed to
work a different trick, thus losing his regular assignment because of the
limitations of the Hours of Service Law, he is entitled to pay for the
hours lost on his regular assignment .... Even though Claimant has
lost nothing in the way of compensation, or in number of hours
worked, he has suffered `loss of time on account of the hours of service
law . . . in changing positions . . . by the direction of proper authority . .
. .' As this language has been previously interpreted and applied by the
Board, such claims have been sustained . . . ."
Other Awards have supported the Carrier's position, as seen in Public Law
Board No. 300, Award 8:
"This dispute involves a claim involving the Federal Hours of Service
Law where tricks on the same day are involved. Award 8984 has
determined this issue and held that it was not a violation of the
Agreement. We concur with the findings in that Award and adopt the
position taken therein. On the other hand, Third Division Awards
2742 and 7403 have established the principle that similar claims for
different work days are valid. Since in this dispute the claim is for the
same work day, it will be denied."
Careful examination of the Awards cited reveals that the distinction expressed in
the foregoing decision has been maintained by the weight of authority on this property.
The situation where an employee is held off his regular assignment to work another
shift on the same work day is distinguished from the situation where an employee is
held off to work a shift on a different day. The latter has been held to be a violation of
Article 18; the former is not a violation. See, Third Division Award 18456 as well as
Public Law Board No. 300, Awards 5, 6, 8, 9, 10, 11, 21 and Public Law Board No. 588,
Awards 5 and 8. This distinction would be equally valid regardless of whether the
claim is for loss of time on account of the Hours of Service Act or for loss of time due to
a change in position by direction of proper authority.
Form 1 Award No. 37928
Page 4 Docket No. TD-38235
06-3-04-3-155
In light of the history of the Rule and its practical construction over so many
years, we find that Article 18 was not violated under the circumstances presented. We
cannot consider that there has been a loss of compensation or loss of time where an
employee has worked one trick instead of another on the same day.
Finally, we reject the Organization's argument that the Carrier failed to comply
with the Memorandum of Agreement dated March 5, 1974. Item 2 of this
Memorandum requires that, within 60 days from date the claim is received, the Carrier
must notify the employee or his representative in writing of the reasons for disallowing
the claim. The Board finds that the Carrier fully complied with this requirement when
a timely explanatory letter of declination was provided to the Claimant.
Based on the foregoing reasons, the Board must deny the claim in its entirety.
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 22nd day of August 2006.