The issue presented by this claim is whether the Claimant is entitled to be paid for the deferred starting time under Rule 30(a) as a result of the move of the assembly point of his assigned on-line system gang 665 miles at a time when he was on vacation. It raises the question of whether the last day worked prior to the period of observance of vacation and holidays and the first day back to work after such period meets the definition of "consecutive workdays" found in the relevant provisions of the Agreement set forth below:
The facts are not in dispute. The Claimant was assigned to on-line System Gang 8562 working compressed halves during the relevant period, with its assembly point in The Dalles, Oregon. He took scheduled vacation (including certain paid holidays) from November 27 to December 31, 2007. During this period of time, his gang moved its assembly point 665 miles to Dehli, California, and the gang members working were given deferred starting time on the second day of the move. The Claimant returned to work at the new assembly point on January 8, 2008, and the Carrier denied his request for compensation for the same deferred starting time as was given the rest of the gang members at the time of the move. This claim resulted.
The Organization argues that Rule 30(a) and Appendix X-2 contain no exceptions that permit the Carrier to deny an employe deferred starting time simply because the employee was observing authorized vacation when a gang move takes place, and that accepting the Carrier's interpretation would alter the intent of the clear language of the Rule, which the Board must apply as written, citing Third Division Awards 1248, 18423, 20276, 20956 and 37464; Special Board of Adjustment No. 279, Award 445. It relies on the holding of Public Law Board No. 6244, Award I that "consecutive work days" in Rule 30(a) can include calendars days that are separated by contractually provided time off as applicable to this case. The Organization contends that the Claimant is entitled to the same deferred starting time afforded to all other members of his gang, or pay in lieu thereof, because he made the change of assembly point, just on a different day than the others. It asserts that the Carrier did not contest its requested remedy of payment of 12 hours at the overtime rate, which should be granted by the Board.
The Carrier contends that the Claimant is not entitled to a deferred start time because he did not make the move from one assembly point to another with the rest of Form 1 Award No. 40938
his gang because he was on an approved vacation he had requested months before. It notes that Rule 30(a) sets forth the purpose of deferred starting time - which is to insure adequate rest - and asserts that the Claimant had 42 days to rest between the times he performed service for the Carrier on November 26, 2007 and January 8, 2008. the Carrier argues that the holding in Public Law Board No. 6244, Award 1 deals with whether Friday and Monday are considered consecutive work days where Saturday and Sunday are the designated rest days, and does not address the issue where an employee takes vacation between such work days. It notes that a vacation day is considered a work day under the National Vacation Agreement definition, pointing to the holding in Public Law Board No. 6302, Award 14, and concludes that the Claimant did not work consecutive work days in this case. The Carrier argues that a vacation day has been determined to be a voluntary absence from a workday, negating the contractual requirement for deferred starting time, citing Third Division Awards 39135, 39136, 39277, 39504 and 39717. The Carrier also asserts that evidence of past practice on the property not to pay deferred starting time when an employee is on vacation at the time the gang moves has not been refuted on this record. Finally, the Carrier takes issue with the request for payment at the overtime rate as excessive.
A careful review of the record convinces the Board that the Organization failed to meet its burden of proving a violation of Rule 30(a) in the denial of deferred starting time to the Claimant in this case. Rule 30(a) and Appendix X-2 make clear that the purpose of deferred starting time is to insure the opportunity for adequate rest for online gangs moving assembly points prior to being requested to again go on duty. The Carrier's unrefuted practice on the property to grant deferred starting time only to gang members who actually make the move and are performing service both before and after the move is consistent with this purpose. As noted by the Carrier, the Claimant was not only not working at the time of his gang's move, but he had 42 days off between November 27, 2007 and January 8, 2008 when he reported to the new assembly point and requested deferred starting time. Additionally, prior on-property precedent establishes that vacation time is considered to be voluntary absence from a workday, and does not bridge the gap of consecutive work days for purposes of contractual benefits (such as rest day per diem). See, e.g. Third Division Awards 39277, 39504 and 39717; Public Law Board No. 6304, Award 14.
Public Law Board No. 6244, Award 1, relied upon by the Organization, does not provide otherwise. It deals with the interpretation of "consecutive workdays" under Rule 30(a) in the context of a Monday to Friday workweek with Saturday and Sunday rest days, finding that Friday and Monday are properly considered consecutive Form 1 Page 5
workdays for purposes of deferred starting time occasioned by travel to a new assembly point over 450 miles away on a rest day, and in the absence of a showing of prior practice to the contrary. That Award does not deal with whether deferred starting time is owed to a gang member who was on vacation at the time of the move and whose workdays were separated by other than assigned rest days. Consistent with proven practice, the precedent on the property with respect to vacation days being considered "workdays" for which an employee is voluntarily absent, and the purpose of Rule 30(a) we conclude that the Claimant did not work on "consecutive workdays" within the meaning of Rule 30(a) and is not entitled to compensation for deferred starting time in this case.
