This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Claimant established and held seniority in various classes within the Track Sub-department. At times relevant to the claim, he was regularly assigned as a Track Inspector headquartered in Mandan, North Dakota, with a Tuesday through Saturday workweek. The Carrier designated Sunday and Monday as the Claimant's rest days.
The Carrier assigned the Claimant to attend a training course at the Overland Park, Kansas, training facility on five week days beginning Monday, September 13 and ending Friday, September 17, 2004. To comply with Carrier instructions, the Claimant completed his regularly assigned work shift on Saturday, September 11, 2004 and traveled to the training facility to be ready for work on Monday, September 13. After completing training on Friday, September 17, 2004, the Claimant submitted his end-of-the-work-period time sheet/expense report in which he included the eight hours of training on Monday, September 13 - a normal rest day for his assignment - for pay at time and one-half his normal rate.
In a letter dated October 19, 2004, the Carrier notified the Claimant of its denial of overtime and recouped $80.58 from his next paycheck. The Timekeeper Supervisor informed the Claimant:
"In Award 10808 (Moore), it was noted that there are exceptions to time consumed by an employee when directed by the Carrier as being considered `work' or `service.' One of those exceptions was held to be where the circumstance contains a mutuality of interest. The Award concluded, `Awards have held that classes on operating rules and safety rules are such exceptions.' See also, Award 11048 Form 1 Award No. 40514
The Carrier argues that no overtime occurred here and that under Rule 29. Training does not trigger overtime. It rejects the Organization's reliance on Rule 32. The Carrier asserted that its past practice was to pay employees assigned to training on their rest days at their straight time rate.
The Carrier further argues that the Organization offered no evidence in the record of the monetary damages claimed. It further argues that those damages are excessive, that they would constitute a windfall to the Claimant and that the Agreement does not authorize punitive damages.
The Carrier denies the Organization's contention that it violated the Agreement by failing to provide the Claimant with a reason for disallowing the money at issue in this claim. It asserts that the notice to the Claimant quoted above provided adequate reasons. It also argues that the Claimant acknowledged receipt of the notice. It urges the claim be denied as without merit.
The Organization argues that it met its burden of proof to show that the Claimant was not free to observe the rest day assigned to him by the Carrier and that by requiring him to work on a rest day while denying the pay rate mandated by the explicit language of Rule 29A, the Carrier violated that Rule and the Agreement.
The Organization emphasizes that it is not claiming pay for overtime hours worked. In response to Third Division Award 32204 cited by the Carrier, the Organization distinguishes that case from the instant facts. Therein the board denied overtime pay to Train Dispatchers who participated in one-hour computer training classes after completion of their regular eight-hour assignments.
In the instant case, by contrast, the Claimant contends he was held on duty at the Carrier's direction and was not free to go his own way on his Friday rest day. In support of this position, the Organization calls attention to the Carrier's March 15, 2004 letter in the record reducing the Claimant's pay rate to straight time for the day at issue. It argues that the fact of his being assigned to training on his rest Form 1 Award No. 40514
day was not disputed by the Carrier and that it involves exactly the situation for which Rule 32A requires time and one-half pay.
The Organization admits that the Claimant was attending a Carriermandated formal training school, but denies that this indicates he was not performing work for the Carrier. It cites Third Division Award 31949 which sustained a claim for time and one-half pay for those employees who attended mandated meetings on their rest days on the basis that attendance constituted "work" or "service."
The Organization argues that the Agreement upon which this claim is based is definite and unambiguous and prior practices are therefore not controlling.
The Organization argues that the monetary damages claimed are proved by the Carrier's denial letter in the record, that they are not excessive, that they do not constitute a windfall to the Claimant and that they are not punitive damages.
In performing its analysis, the Board notes Rule 32A has two elements that must be met for it to apply - "rest day" and "work or held on duty." As the moving party in this rules case, the Organization bears the initial burden of establishing material facts necessary to make out a prima facie violation of the Agreement. After a thorough review of all evidence including party Submissions, the Board finds adequate evidence in the record to determine that in this instance the Organization met its burden of showing that the day for which pay is claimed, was a rest day for the Claimant and that he was "held on duty" by the Carrier on that day.
The Board notes that the Carrier pays straight time for regular work and that it does not pay employees who fail to or refuse to work. Because the Carrier pays employees for time spent on training, that indicates an employee attending training is performing work, or at the very least, is "on duty." This claim does not seek overtime pay for the Claimant's non-rest days. It is a claim for pay for the Claimant's eight-hour assignment at the Carrier's Overland Park facility on a single Friday - a normal rest day for the Claimant on his regular assignment.
The Carrier approaches the issue in this dispute as overtime pay for training. The Organization, on the other hand, regards the issue as time and one-half pay for Form 1 Award No. 40514
attending training on a Carrier-designated rest day. A careful reading of the Submissions indicates that the claim does not seek overtime (although it does seek time and one-half pay). Indeed, the Board notes that Rule 32 does not contain the word "overtime" or concern itself with "overtime." Rule 32A is clear that employees who are required to work or who are held on duty on rest days will be paid at time and one-half.
The Board takes further notice that the language in this Rule is not limited to "work." It also includes employees "held on duty" on their rest days. This dispute presents precisely that fact situation. The Board is not empowered to write new Rules or to strike existing ones. Consequently, the Board finds that the existing wording of Rule 32A applies to these parties and to this situation. Because there is no claim here for overtime for training performed on non-rest days, we need not reach that issue.
Because this Rule applies both to employees at work and to employees being held on duty, and because the Claimant falls into at least one of those categories, we need not reach the issue of whether training is work.
The record includes the October 19, 2004 letter from the Carrier notifying the Claimant of its denial of $80.58 - the difference between eight hours at the time and one-half rate of pay and eight hours at the Claimant's straight time rate. The Board concludes that the monetary damage claimed is stated clearly and that this amount, which was recouped by the Carrier, is not excessive, is not a windfall to the Claimant and does not constitute punitive damages.
In view of the foregoing and based on the record as a whole, the Board finds that the record shows the claim to be meritorious and that accordingly, a sustaining award is in order. Due to the Board's findings and conclusion in this matter, the Board need not reach the issue as to whether the Carrier violated the Agreement by failing to provide the Claimant with a reason for disallowing the money at issue in this claim. The claim will be sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.