Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 Award No. 41635The 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 Zl, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Organization argues that the Carrier unilaterally and without justification altered the Claimant's position of a Monday through Friday workweek. Without attempted negotiation and without operational need, the Carrier discontinued the historical position on the same territory and created a new position doing the very same work on that territory at North Platte, Nebraska. The Organization argues that the Carrier did this to evade the Rules regarding rest days and violated Rule 5, which states: "On positions the duties of which can reasonably be met in five days, the days off will be Saturday and Sunday." The Organization argues that the Carrier is using numerous tactics, as well as Third Division Award 40609 to avoid the Rules and introduce numerous changed traditional rest days without proving the necessity to do so. It produced signed affidavits from Signal Maintainer Albrecht and the former incumbent that the change was unnecessary. It argues that there are plenty of employees that can fill any need on overtime or an emergency. The Organization also produced documentation that on other territories there is nothing close to the percentage of Saturday and Sunday rest days as on the territory of Manager Signal Maintenance (MSM) Moritz. In short, the Organization argues that there is neither negotiation (Third Division Awards 31471) nor proof of a need for an operational change (Third Division Awards 20107, 22242 and 35409).
The Carrier contends that there were clear operational needs that required a change in the traditional Saturday and Sunday rest days. It contends that it attempted to discuss the change. In order to meet the needs of service the position had to have other than Saturday and Sunday rest days. The Carrier notes that after the Claimant's departure from the position, it was bulletined again without complaint or grievance to have Friday and Saturday rest days. It is the Carrier's position that the affidavit does not prove a lack of need and neither the evidence on other territories, nor the lack of a satisfactory conclusion to the Organization, demonstrates a lack of
Form I Award No. 41635negotiation. The Carrier provided statements from MSM Moritz to document that the need for a change in the normal rest days was essential for the efficient maintenance and testing necessary to handle the number of trains and amount of work. The Carrier is adamant that it violated no Rule of the Agreement.
Among the Rules at the core of this dispute are Rules 5 and 56. Key parts of those Rules include Rule 5, General, which states that, "the work weeks may be staggered in accordance with the Carrier's operational requirements, so far as practicable the days off will be Saturday and Sunday . . . ." Rule 5 E states:
And lastly, Rule 56 clearly states that, "Established positions will not be discontinued and new ones created under a different title covering relatively the same class of work for the purpose of reducing the rate of pay or evading the application of the rules in this agreement."
A full reading of the record documents reveals that there was clear negotiation between the parties on the efficacy of the change. An impasse was reached between what the Organization argued as different configurations and the Carrier contended was a needed operational change. The Carrier stated:
Form 1 Award No. 41635The Board finds ample evidence in this record documenting a need for the Carrier to make an operational change in rest days. The Carrier had that burden of proof and met it. There is nothing in this record to address with persuasive evidence that the statement, supra, lacks support. There is nothing presented as evidence by the Organization that persuasively rebuts the above arguments or the statements of the MSM. Nor is there persuasive evidence that this change was made to circumvent the Agreement Rules. The Board finds that the Carrier met its required burden of proof. Therefore, the claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
3-41636
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
Form I Award No. 41636This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
This claim protests the Carrier's January, 2007 bulletin regarding System Rail Gang (SRG) 9116 with fixed headquarters at Englewood Yard in Houston, Texas, and raises the issue of whether the Carrier can bulletin to the system seniority roster a fixed headquarter gang, or whether the Agreement requires that SRGs be assigned as "on-line," with its employees receiving per diem and travel allowance payments. The lengthy record contains evidence with respect to the bargaining history involving the Memoranda of Agreement dealing with SRGs in 1951, 1963 and 1983, and the 1997 Implementing Agreement replacing Agreements on other merged properties, as well as integrating seniority lists covering employees spread over a ten territory jurisdiction, into the April 1, 1975 Missouri Pacific (MP) Agreement, which was updated in the current July 1, 2000 Agreement.
The claim, which was filed on February 6 and amended on March 7, 2007, was initially denied on March 29, 2007. Thereafter, it was appealed on May 16 and again denied on July 11, 2007. It was subsequently appealed after conference on September 24, 2007. After mutual extensions of time granted to the Organization to file the claim with the Board, by letter dated December 14, 2009, the Organization submitted additional evidence in support of its argument that there was a consistent, well known, and binding 50-year past practice supporting the fact that SRGs have always been bulletined as mobile (camp cars/on-line) gangs, and the employees covered by the provisions for lodging and meals (or per diem in lieu of) and weekend travel expense, in the form of two declarations from Southwest Region Vice President Roger Sanchez (representing former SP-E employees) and MP General Chairman Bill Palmer (both involved in the negotiations for the 1997 Implementing Agreement with UP Director of Labor Relations Wayne Naro, where the operation of SRGs under the 1975 MP Agreement was discussed in depth) as well as statements from approximately 47 SRG employees and 62 sample SPG bulletins spanning the time period between 1983 and 2001. The Notice of Intent was filed with the Board on January 28, 2010. The Carrier sent a one page letter responding to the Organization's December 14 evidence on February 8, 2010, which the Organization asserts is untimely and not properly before the Board, relying on Third Division Award 30127.
Form 1 Award No. 41636The Organization argues that the Carrier's decision to headquarter positions on SRG 9116 in Houston, Texas, and deny employees on-line per diem and weekend travel allowance pursuant to Rules 36(b)(1) and (2) and 37(a)(1) and (2) is a clear repudiation of the terms and conditions of employment set forth in the controlling Agreement language and more than 50 years of past practice. It notes that SRGs draw employees from a massive ten state system through a system seniority roster, and that these employees travel over that expanse of territory, far from their homes, installing rail. The Organization points to the language negotiated in each of the National Agreements for the provision of lodging (camp car/motels) and meals or per diem in lieu of such expenses, as represented by Rules 36(b)(1) and (2) (Travel Time - Bunk Cars or Trailers) and 37(a)(1) and (2) (Travel Allowance) under the current 2000 Agreement as representative of benefits negotiated for system gangs working away from home and headquartered on-line, and the meeting of the minds of the parties with respect to providing those benefits.
The Organization, acknowledging that there is no explicit language with respect to headquarters for SRGs in Rule 3 which governs them, relies upon evidence establishing a clear, unambiguous, consistent past practice showing that all SRGs have been bulletined as mobile (camp car/on line) gangs for more than 50 years, with minor more recent exceptions objected to by the Organization and rebulletined by the Carrier, in support of its argument that such a practice creates an unwritten agreement provision that has the same force and effect as a written provision, and is binding on the Carrier, citing Special Board of Adjustment (Truck Panel Fabrication Dispute) (Wallin, 2001) and Consolidated Rail Corp. v. Railway Labor Executives Assn, 491 U.S. 299 (1989). It notes that the practice of providing meal, lodging and travels benefits to SRG employees clarifies the intent of the language of the Agreement with respect to whom these benefits were negotiated for. The Organization contends that it makes no sense to bulletin a position with a fixed headquarters to people on the system seniority roster, who may be required to travel thousands of miles to work at that headquarters location, and then deny them any benefits for such travel and work time away from home. It also asserts that the 2000 Agreement updated the 1975 MP Agreement by including items negotiated in the Memoranda in the interim, and did not change any prior practice with respect to the operation of the SPGs, which were not "in conflict" with the Agreement under the language of Rule 58.
The Organization also relies upon the statements of Palmer and Sanchez concerning discussions that took place during the negotiations for the Implementing
Form 1 Award No. 41636Agreement with respect to the operation of SRGs under the MP Agreement, and statements made by Naro that SRGs were mobile gangs provided with meals and lodging or per diem in lieu thereof, to further prove the mutual understanding of the parties during negotiations with respect to this issue. Again relying on the declaration of Palmer, the Organization sets forth what occurred as a result of its objection to the Carrier's attempt to establish a headquartered system gang in Houston in 2005, where Union President Simpson led a delegation of officials to meet with Naro, resulting in the Carrier's abolishment of the SRG positions and the subsequent re-bulletining of the position to local Division forces, as evidence that it objected to any attempt on the Carrier's part to change the long-standing past practice of bulletining SRGs as mobile gangs. It asserts that the record supports the payment of the Rule 36 and 37 contractual benefits to the employees of SRG 9116, who were denied any compensation for meals, lodging or travel expense, due solely to the Carrier's impermissible and unprecedented bulletining of these positions with fixed headquarters in Houston, Texas.
The Carrier contends that the Organization failed to meet its burden of proving a violation of the Agreement in this case, noting that there is no Agreement support for paying the Claimants on-line expenses when they were assigned to a position with a permanent headquarters. It first points out that this dispute is governed by the 2000 National Agreement which, according to Rule 58, supersedes all rules, practices and working conditions in conflict therewith. . ," asserting that any provisions from the 1951, 1963 and 1983 Memoranda, and the 1975 MP Agreement not incorporated in the 2000 Agreement have no force and effect. The Carrier notes that the parties specifically negotiated in Rule 5, governing System Bridge gangs, that the positions were to be bulletined exclusively on-line, but, despite the fact that the same experienced negotiators were involved, no similar restriction is contained in Rule 3 governing SRGs.
The Carrier also argues that the Organization failed to establish an exclusive, system-wide past practice of bulletining SRGs only as on-line gangs, giving examples of three recent cases where fixed headquarters were established for positions open to bid to system seniority roster employees. It notes that the Claimants voluntarily bid and accepted positions on SRG 9116 knowing it was headquartered in Houston, Texas, and without the on-line expenses they seek through this claim, and asserts that the record is devoid of any specific information that they incurred any such expenses. The Carrier states that there is no restriction in the 2000 Agreement on its management prerogative to use its forces as it deems
Form 1 Award No. 41636most beneficial to the efficient operation of its business, or to establish headquartered gangs open for bid to employees on the system seniority roster, as it did in this case. The Carrier notes that, since the filing of the instant claim, the parties have negotiated a separate agreement effective January 1, 2011, providing that system and zone gangs are to be headquartered as "on line" gangs. It contends that such agreement would not have been necessary if the 2000 Agreement had contained such a provision covering SRGs, as alleged by the Organization.
A careful review of the record evidence convinces the Board that the Organization met its burden of proving an established past practice of bulletining SRGs as "on-line" gangs. The declaration of Palmer, bulletins and statements of SRG employees spanning decades, statements made during negotiations for the Implementing Agreement, as well as the absence of any indication by the Carrier during negotiations for the 2000 Agreement that it intended to change such practice, all support the conclusion that the Carrier understood that the practice of SRGs operating as mobile gangs entitled to the meals, lodging (or per diem) and travel allowances applicable to employees working on-line continued into the current Agreement unchanged. This is also seen by the undisputed continuation of this practice for at least five years after the 2000 Agreement took effect. Under such circumstances, the Board is unable to accept the Carrier' position that Rule 58 did away with this practice solely because language concerning the headquarters of SRGs was not specifically negotiated into Rule 3. The binding past practice was just that, a long-established practice that became an unwritten term of the Agreement, in the absence of specific language to the contrary. See, Consolidated Rail Corp. v. Railway Labor Executives Assn, supra; Special Board of Adjustment (Truck Panel Fabrication Dispute), supra.
With respect to the requested remedy, as noted by the Carrier, the parties have negotiated a subsequent Agreement setting forth, in writing, that system and zone gangs are to be headquartered "on-line" effective January 1, 2011. While this fact alone does not negate the validity of the past practice previously in existence that forms the basis for a finding of a violation of the Agreement in this case, it does bring an end to any potential liability. The Rule 36(b) per diem allowance is to help defray expenses for lodging and meals of on-line employees working away from home, and the Rule 37 travel allowance is compensation for miles actually traveled to return home at the end of each workweek. These provisions should have been applied to the Claimants while they were working on SRG 9116. Because the record does not contain any information concerning whether any expenses or travel were
Form 1 Award No. 41636actually incurred by the employees on SRG 9116 encompassed within the claim, the matter is remanded to the parties for a joint record check with respect to the amount of expenses and travel incurred by the Claimants while working on SRG 9116 and the duration. The Claimants shall be compensated accordingly.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Ciaimant(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.
