Earnings) provides: "An employee covered by this agreement who suffers loss of earnings because of violation or misapplication of any portion of this agreement will be reimbursed for such loss."

The Organization's position is that the Carrier violated Appendix. D (Personal Leave) and Rule 80 of the parties' Agreement by paying the Claimant eight hours at his straight time rate rather than ten hours for each personal leave day taken on July 26 and 27, 2004. According to the Organization, the Claimant's regular rate" of pay at the time this dispute arose "was being paid for working 10 hours per day" and therefore, the Claimant was paid four hours less than he should have been under the provisions of Appendix D for his July 2004 personal leave days. The Organization argues that all employees are guaranteed a 40-hour workweek under the Agreement regardless of work schedule. In addition, the Organization asserts that the "language in Appendix D, Section 2(b) cannot be clearer, and mandates that personal leave days will be paid for at the regular rate of the employee's position."

lit response to the Carrier's argument that employees is the Claimant's situation have the option of making up missed hours by working two additional hours during the workweek for each personal day used, the Organization points out that no contractual provision allows employees such as the Claimant to work without at least a Foreman present. Moreover, the Organization contends, the Carrier presented no proof of any Agreement provision or any policy in support of its argument in this regard. According to the Organization, the Carrier's argument asserts an affirmative defense, and therefore the burden shifted to the Carrier to prove such defense. In response to the Carrier's position that no Agreement provision adjusts the number of hours for which employees are compensated when their gang votes to work a shortened workweek, the Organization contends that the Carrier's established past practice has been to pay personal leave days at the daily rate. The Organization emphasizes that during on-property handling of the instant claim, the Carrier never refuted the Organization's arguments regarding past practice. Moreover, the Organization argues that vacation is paid at the employee's daily rate, and therefore personal leave days should also be paid at that rate.

09-3-NRAB-00003-050678 (05-3-678)

It is well-established that the burden of proof cannot shift from the Organization to the Carrier until the Organization has met its initial burden of proof regarding its claim. In the instant case, the Board finds that the Organization has not met its initial burden of proof. The Organization offered no evidentiary support whatsoever for its claim that the Carrier's past practice has been to pay employees their daily rate for personal leave days, while the Carrier submitted payroll records showing that the Claimant himself has in the past been compensated only for eight hours at his straight-time rate for personal leave days, regardless of his work schedule.

Moreover, the Organization failed to point to any clear language in the parties' Agreement that supports its position that the Claimant should have been paid ten hours for his July 2004 personal leave days. The Board notes that while the National Vacation Agreement, incorporated by reference in Appendix B of the parties' Agreement, specifies that employees with regular assignments will be paid for vacation days "the daily compensation paid by the Carrier for such assignment." (emphasis added) Appendix D states only that employees will be paid for personal leave days "at the regular rate of the employee's position or the protected rate, whichever is higher." Having found that the Organization failed to offer evidentiary proof sufficient to support its initial burden, the Board must deny the claim.

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 April 2009.

QMnisdoo's Dissenting Qgiaion

Third Division Award No. 39663

Docket No. SG-39212

Referee Joan Parker

Brotherhdod of Railroad Signalmen

V.

Union Pacific Railroad Company

The Orgomizotlon &arty belies that fdings of afanementjnaedAward.= beyoadthe point of absurdity and should be reviewed only as an example of an assailable injartice.

The facts of nxmd indicde that the Claimant was woda% a coed vwrk week of
eigk tds4oar days followed by sac rest daps. Clue requested and was allowed to
observe two personal leave days; however, he was not compensated, as in the post, at the
pcvM rata of 10 homes pay per day. The clear and unequivocal lie of the
Agreement compensation demands of IO hours pay and not eight hours pay as afagcd by
Cssriar in tlds

The Reftaa stated ire bee F'that; "...the Orlan failed to polxt to any chats'
harqrap be the pities' Agroansnt that srfparts as posftion deaf tire Clafixaw shored
haw beer, paid tern ham for his Jrdy 2004 Perunmi leave drrym Ae Bated Notes dent
while the National Vacation AgreenreM incorporated by Reference in Appendtu B of the
parats' .Igmanent, spscyles that employees with regular assignments will be paid for
vacation days 'the ,d(v coMWansation gLdd &y the Carrier f

arse. '(emphasis added) Appendbr D states only that employees will be paid for personal leave days 'at the regular rate of the employee's positron or the protected rate, whichever is higher.

Here, the referee erred when she chose to ignore the fact that the Organization clearly established the past practice of compensating employees 10 hours for personal leave days when morking a compressed work week.

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The Referee clearly overlooked or failed to read the Organization's submission where it clearly pointed out Carrier's position on compensated hours paid to employees working a compressed work week back in 1'95, in a claim denied by the Carrier, wherein it stated:

"...it has been a past goLtice by the Carrier that if the Claimant is an eight (8) hour a day employee who works 5 days a week, then they would be entitled to eight hours. Similarly, if an employee is a ten- (10) hour employee, such as Claimant, then his vacation is taken at ten (10) hours per day. I direct the Organization's attention to Appendix B section (a) of the agtmorrert which 'or eqrloyeet leaving Q xgufar am4anaat wilt he rwhile err vacation flax dab eg»,mtq(j= raid by the Carry for such asstg~' As stood in your claim, Claimant's assignment is eight E9) days on a ten (IQ) how per day schedule, and as such Claimant is therefore entitled to ten (10) hours fm each day of vacation." (See Organization's Exhibit No. 6 - emphasis ridded)

Ewes though the: above~xf vacation day aompesssatioa, aced this inane conaeran personal leave day compexrsatian, they are one of the same in how Carrier, in the past 20 yews, compensated employees waking a compressed work week.

h is obvious that Gar, in 1995, made tire clear acrd unequivocal neetiOQ theft when an employee works a cmpressed work week they would be compensated the daily rate of lo boos per day to guarantee that employees received 44 hours of compe~irnt
fray tht week_ par Rule 5 of the Agreement. As stated by Carrier in its fiat of this

ia. claim on March ?, ZWS,. "Fate kaw allays am prdd ire the sam mcarrrar as `on days arse paid to emptoy~eex. " The only record provided by Carrier was that it stopped compensating employees 10 hours for a personal leave day when working a comes work week. During the on-property handling of this claim, Carrier never refuted the Organization's arguments regarding the past practice of compensating employees 10 hours per day for personal leave days, the same as it has done historically for vacation days.

Carrier attempts to tell a tale that the Claimant has the option of making up missed hours by working two additional hours during the workweek. However, without refute from Carrier the Organization established that there was no conk provision or policy that

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allows anployem such as the Claftneat, to work additional haul without a FQTeMAn. Therefore, the Claisnaat was nevcr teed an opportunity or ins on how to recover two hours of lost wages per each persona! leave day he obsercred, when Carrier arbitrarily changed its past practice on the amount of hours paid for personal leave days when working a compressed workweek.

Obviously, the Referee took the bait, hook-line-and sinker, and swallowed Carrier's
rniagnidad aqpmuw that, since the uwqdm of personal leaves day06 C=a has always
pad an cuq"yea ei&U hours P' if that awes working
a five day wart week or a compressed work viaL One would r if Cwas
correct in its assumpdon, why have there never bear any claims filed prior to this instant
case by the Organization? One can only presume that the Referees ability in making
la

wasaw intetjpraudoas is hie* suspect and beyond ft boners of reas1 1 aIn exrnclusior~ based on the foregoing, the Orion disseuts to the findings in this Away

Respecdhft sabrn 1

ted,

%4A 01014

CA. McGraw, BotRS Labor Manbe ·~
NstioW Raibxoard ~djctmeiu board

Roy - BMW David Volt -

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Steve Watson - TCt1

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