Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 42074 Docket No. MW-42189
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The Third Division consisted of the regular members and in addition Referee Margo R. Newman when award was rendered.
(Brotherhood of Maintenance of Way Employes Division – ( IBT Rail Conference
(Union Pacific Railroad Company
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier failed and refused to allow System Gang 8523 employes A. Black and W. Gooding the seven (7) hours of ‘deferred starting time’ as required by Rule 30 in connection with their assigned gang’s move of assembly point from Soda Springs, Idaho to Boardman, Oregon (System File D-1130U-203/1562380).
As a consequence of the violation referred to in Part (1) above, Claimants A. Black and W. Gooding shall now each be compensated for seven (7) hours of deferred starting time at their respective straight time rates of pay.”
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.
The issue presented by this claim is whether the Claimants are entitled to be paid for the deferred starting time under Rule 30(a) as a result of the move of the assembly point of their assigned on-line system gang 555 miles at a time when they were on vacation. The relevant provisions of the Agreement are set forth below.
RULE 30 - DESIGNATED ASSEMBLY POINT
“(a) * * *
The assembly point for employees headquartered on-line will be the designated work site where the days work is scheduled to begin. If the assembly point for on-line employees is changed from one workday to another, the Carrier must designate the new assembly point no later than the close of shift on the previous workday. Unless so designated, the assembly point will remain unchanged. If the employees are prevented from assembling at the work site to begin their tour of duty because of inadequate roads or parking for their personal vehicles, arrangements for a suitable assembly point located nearest the work site will be made for the beginning of each employee’s tour of duty.
For the purpose of insuring that the traveling on-line employees are afforded an opportunity to secure adequate rest, it is agreed that the distance traveled between a former assembly point and a new assembly point during any 24-hour period will not normally exceed four hundred fifty (450) miles. Likewise, traveling on-line employees will not normally be expected to travel in excess of one hundred fifty (150) miles in moving from the former assembly point to the new assembly point during the unassigned hours between two consecutive workdays.
APPENDIX X-2
Under the language of Rule 30 the parties placed certain mileage restrictions on the location of a newly designated assembly point. These restrictions are intended to be applied under normal day-to- day operations. The parties jointly well recognize, however, that on occasion the requirements of service may dictate the need to establish an assembly point at a location in excess of the mileage restrictions set forth in Rule 30. The rule is not intended to prohibit such movement, but is primarily intended to insure that on-line employees are afforded an opportunity to secure adequate rest before being requested to again go on duty. When such long distance moves are made, any distances traveled in excess of the restrictions shall be discounted at the rate of sixty (60) miles per hour from the next scheduled workday beginning at the start of the shift. In computing time under this provision, any fraction of a half hour less than fifteen (15) minutes shall be dropped; in turn, any fraction of a half hour which is fifteen (15) minutes or more shall be counted as an additional one-half hour.”
The facts are not in dispute. The Claimants were Roadway Equipment Operators (REO) assigned to on-line System Gang 8523 working a compressed work period pursuant to Rule 40 during the relevant period, with its assembly point in Soda Springs, Idaho. They took 40-hour blocks of vacation from October 1 through October 4, 2011. During this period of time, their gang moved its assembly point 555 miles to Boardman, Oregon, and the gang members working were given deferred starting time of 11 hours, or one day of travel, when they made the move. The Claimants were instructed to report to the new assembly point at their regular starting time after the end of their vacation, and the Carrier denied their 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 are clear and unambiguous, and provide all gang members with deferred starting time/compensation if they travel certain distances as a result of a change in headquarters, which the Claimants did when returning to the new starting point
after their vacations. It notes that these provisions contain no exceptions that permit the Carrier to deny an employee 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 Special Board of Adjustment No. 279, Award 445; Third Division Awards 1248, 18423, 20276,
20956, 36518, 37464 and 37335. The Organization cites Third Division Award 40229, an on-property case also involving a compressed half work period, as direct support for its position that Rule 30(a) contains no exception for employees on vacation during the move of assembly points. It also relies on the holding of Public Law Board No. 6244, Award 1 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 Claimants are entitled to the same deferred starting time afforded to all other members of their gang, or pay in lieu thereof, because they traveled to the new assembly point when they returned to work after vacation.
The Carrier contends that the Claimants are not entitled to a deferred start time because they did not make the move from one assembly point to another with the rest of their gang inasmuch as they were on an approved vacation. It notes that Rule 30(a) sets forth the purpose of deferred starting time - to insure adequate rest to traveling on-line employees - and asserts that the Claimants were still enjoying time off from work on vacation at the time the gang moved, and were well rested before they had to report to the new assembly point. The Carrier argues that the issue in this case has recently been decided between these parties under this Agreement in Third Division Award 40938, and its finding that no deferred starting time is payable to employees on vacation at the time of the move, is stare decisis in this case, citing Third Division Award 27810 and Second Division Award 11080. It asserts 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. The Carrier 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 Claimants did not work consecutive work days in this case, and the Rule 30 benefits apply to employees who work consecutive work days. The Carrier points
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out 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 39277, 39504, 39717, 39136 and 39135. The Carrier 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 was not refuted on this record, and its actions were consistent with the Agreement and this historical practice.
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 Claimants. The Board does not agree with the Organization that Rule 30(a) is clear and unambiguous with respect to the payment of deferred starting time to employees on vacation at the time of the move. Public Law Board No. 6244, Award 1 noted such ambiguity. The Agreement is silent concerning what was intended for such employees, and the intent of the parties must be found in the language they used to describe the purpose of the benefit, as well as the parties’ practice with regard to its payment.
As found by the Board in Third Division Award 40938 (with Referee Margo
R. Newman participating), 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 on-line gang employees moving assembly points “prior to being requested to again go on duty.” In the instant case, the gang moved its assembly point 555 miles during their compressed work period, and employees were given 11 hours’ paid deferred starting time to rest prior to having to report back on duty on the consecutive work day after making such move. The purpose for deferred starting time was directly served because gang members were provided an opportunity for adequate rest before resuming work. However, no such purpose is served by affording the Claimants a deferred starting time when returning to work after 40 hours of paid vacation.
Additionally, 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 in line with this purpose, and provides additional support for an interpretation consistent with this intention. Prior on-property precedent establishes that vacation time is considered to be
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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 Award 39277, as well as Public Law Board No. 6302, 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 workdays for purposes of deferred starting time occasioned by travel to a new assembly point more than 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.
The Board notes that Third Division Award 40229 (with Referee Sherwood Malamud participating) is relied upon by the Organization to support its theory in contravention of the interpretation rendered by the Board in Award 40938. Award 40229 deals with an on-line gang working a compressed half, which moved its assembly point 1509 miles on the three deferred start days after returning from rest days. The Claimant in that case was on vacation during the entire work period when the move occurred, and his vacation continued for two days into the next work period. The Board therein relied upon the fact that Rule 30(a) does not require attendance on the day before or after the move, the absence of any reference in the language of the provision to the impact that employee vacations have on the payment of deferred starting time, and the finding that the Carrier failed to prove a past practice with respect to the payment of deferred starting time to gang members on vacation during the move, in refusing to “create an exception not contemplated by the clear language of the Rule.”
With all due respect to the Malamud Award, we have found that the language of Rule 30(a) and Appendix X-2 is not clear and unambiguous, and that the intent of the parties established in the instant case supports the conclusion that the Claimants are not entitled to receive deferred start time pay for the move of the assembly point of their gang during a time when they were on vacation.
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We reaffirm the rationale and result in Award 40938, which dealt with the same issue between the same parties under the same Agreement language, and find that it is not palpably erroneous. Accordingly, the Claimants are not entitled to compensation for deferred starting time,
Claim denied.
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 19th day of March 2015.
A WA RD -t2074,. POCJ<:E'T ..MW -421 8()
(Referee Ne\vman)
'f hc Majo1ity erred in i ts find ings here and a dissent is required. This case invol ves the i ssue of an c1nploye's right to make travel result ing from the Carrier's change in designated assembl y poi nts during the assigned hours of defeJTed starting time. "Ilic findings of the Majority have no basis in the Agreement language, arc inconsistent wi th prior precedent invol ving this issue and these same parties and frtil to consider the Agreement as whole. Thus, the findings i n this award are inconsistent with the intent of the parties in connection with the clear limitations on Carrier's right to direct employes to use unassigned hours to make travel when the Carrier changes an on-line gang's designated assembly point. While it may be the Organization 's error in relyi ng heavily on the precedent of Third Division Award 40229 and not fully explaining the overlap and connections of the pertinent agreemen t rules, the fact remains that the Majority's findings arc palpably in error and must not be fol lowed by any future board.
The basic facts were not in dispute. The Claimants were observing vacation when the gang initially made the change in assembly point move. In this regm·d, the Carrier contended that observing vacation disq ualified Claimants from receiving deferred starting time for maki ng the same exact travel as each other member of the gang, albeit when their vacation ended three (3) days after the rest of the gang had made the move. The Majority's decision here wrongly eliminates the mileage limitation on the amount of travel the Carrier can direct an employe to make du1ing unassigned hours and adds an attendance criteria to qualify for deferred starting time that is not contemplated by the agreement.
The Agreement provides for a one hundred fifty ( 150) mile limitation on the distance the Carrier can direct an employe to travel during the unassigned hours between two (2) work days when making a change in an on-line gang's assembly point. Importantly, observing vacation or rest days between those two (2) work days does not eliminate that limitation because the employes are still required to make the same travel. When the one hundred fifty (150) mile limitation is breached, the Canier is required to provide employes the assigned hours of deferred starting time to travel any distances beyond the one hundred fifty (150) mile limitation with no more than four hundred fifty (450) miles to be traveled in a twenty-four (24) hour period.
Award l of Public Law Board (PLB) No. 6244 and Third Division Award 40229 involved these same parties and these same issues. Award 1 of PLB No. 6244 found that the one hundred fifty (150) mile limitation applies to all unassigned hours between two (2) work days, regardless
Labor M.en1ber's Dissent A ward 42074
Page Two
of whether n:st days, vacation days, or personal days are observed in between those two (2) \vork days. Attention is directed to Award l of PLB No. 6244, whkh, in pertinent part, held:
"'lhe Board has considered tlze record and the parties ' positions carE:f td!y. 77ie case rums entire( v mi the ,neaning of lhephrase 'during the unassigned hours between t1vo consecutive workd( )'S. ' On its face, the phrase is susceptible to tHY> reasonable intc17Jretations. The phrase reasonab(v could be interpreted to mean that the 150 mile limitation applies to travel betH'£•en two calendar days when each day is a scheduled •,,vorkday. 17,is is Carrier 's interpretation. Under this interpretation, the Rule serves to limit the amount cf time t?fter a shiji an employee must travel and still be expected to report at his normal start time the .follmving dav.
The phrase also reasonabl y could be interpreted to refer to all unassigned time between work davs, a."!' the Organization urges. Such an interpretation serves to limit the extent to which required travel intrudes 011 the employee's 1massigned. i. e. uncompensated personal time. Thus, vve conclude that Rule 39(a) in (i;ic) ambiguous and that ,ve must look beyond thefour corners of the Rule to interpret it.
* * *
Accordingly, ive.find that the only evidence of past practice with respect to Rule 30(a) and the parties ' undisputed general interpretation of consecutive
,vorkdays support the Organi;ation 's interpretation of Rule 30(a). Furthermore
the Organization 's interpretation results in an easi(v applied division between the 450 mile and 150 mile limitations. The 450 mile limitation applies to travel commenced during assigned ,vorking hours and continuing not more than 150 miles after the conclusion of assigned hours. The 150 mile limitation applies to travel during unassigned hours."
The Agreement mies do not allow the Carrier to direct an employe to travel more than one hundred fifty (150) miles during their unassigned hours between two (2) consecutive work days when making a change in assembly points. It is irrelevant if the gap between those two (2) consecutive work days is filled with rest days, vacation days, personal days, etc. This is because that time is either unassigned, uncompensated personal time or consists of an employe's vacation days or personal days. The Carrier has no right to make employes travel these distances during their rest period, their vacation period or during observance of personal leave. In connection with
employes observing vacation, the Majority's findings in this case essentially eliminate both the one hundred fifty (150) mile limitation for travel during unassigned hours and the four hundred fifty
(450) mile limitation for travel during a twenty-four (24) hour period. This leaves employes to cover vast distances for the benefit of the Carrier during the unassigned hours of their personal time and was not the intent of the governing provisions.
In this case, all employes on Gang 8523 traveled the same five hundred fifty-five (555) miles in connection with the Carrier's change in designated assembly points. This change exceeded the one hundred fifty (150) mileage limitation and the Carrier had to provide a minimum of seven (7) hours deferred start time so that the gang employes did not have to travel the additional four hundred five (405) miles during their unassigned hours. With the exception of the vacationing Claimants, Gang 8523 was properly allowed to travel the four hundred five (405) miles during assigned hours of deferred start time. However, the Claimants were forced to use their unassigned personal time to travel that same distance. Given that the Claimants were not given their seven (7) hours of deferred start time, they were required to be at work the next day after their vacation ended. Thus, the Claimants were required to travel the one hundred fifty (150) miles required during unassigned hours and then drive another four hundred five (405) miles between the end of their vacation day and the start of the next work day. Thus, the general limitations on driving more than one hundred fifty (150) miles during unassigned hours and driving more than four hundred fifty (450) miles in a twenty-four (24) hour period were both breached. Even if the Claimants could travel that distance in such a short period of time, the Claimants would not have an opportunity for adequate rest before resuming work because they would have had to spend those hours traveling distances that are clearly in the excess of the limitations. The Majority in this case ignored the fact that the Claimants still had to travel the same distance as the rest of the crew. In this regard, the pertinent part of Award 40229 held: "... Claimant had tophysically getfrom Omaha, Nebraska, to Colton, California. He had to move
the 1,509 miles from Omaha to Coltonjust as Gang 9080 did. ***"
It must be remembered that travel resulting from the Carrier changing designated assembly points is not the same as end of week round trip travel between home and the work site. In this regard, employes are already required to make round trip travel from home to the work site to home during the unassigned hours of their rest period. For this, they are granted a travel allowance, which does not fully compensate an employe at their rate of pay. The travel when making a change in designated assembly point stands on much different ground since the parties specifically provided limitations on the mileage that employes will have to travel during personal time. Specifically, the parties agreed that employes will make this travel during the assigned hours of deferred starting time and not during their rest period or during vacation. By doing so the parties insured that employes' unassigned rest period hours would not be infringed upon in addition to the one hundred fifty (150) miles and the end of week travel for which they are already
required to use unassigned hours to perform. The fact that the Agreement does not allow the Carrier to direct an employe to use their rest period hours to make more than one hundred fifty (150) miles travel resulting from a change in designated assembly points is established by Rule 36(h) which, in pertinent part, reads:
"(h) Carrier will not deny employees deferred starting timespursuant to Rule 30 and Appendix X-2 on the work day(s) following a change in assembly points over assigned rest days solely because they also complete a work to home to work round trip and receive an Article XIV allowance during andfor the same rest day period, respectively."
In addition to being in conflict with the clear terms of the Agreement provisions, the Majority's findings here can lead to absurd interpretations. This is because there are only so many hours that make up a rest period and forcing employes to travel for a change in assembly point during unassigned hours in addition to the end of week round trip travel already made during their unassigned hours could require more hours than an employe has during the rest period. While the travel distance in this case was five hundred fifty-five (555) miles, the travel distance when changing designated assembly points can easily be one thousand five hundred (1500) or two thousand (2000) miles, if not more. For example, Third Division Award 40229 addressed a situation where the gang made an assembly point change of over one thousand five hundred (1500) miles and the gang was granted approximately four (4) days of deferred start time to travel. Inthat instance, the Carrier expected that employe to use his rest period or vacation time to travel the change in assembly point distance. If an employe observed vacation during the time the initial change in assembly point is made, they would have to use that vacation to travel the distance for the Carrier. The alternative would be to travel the one thousand five hundred (1500) miles between the end of the employes' last day of observed vacation and starting time the next work day. This is impossible and certainly would not provide an employe with adequate rest before going on duty. Consequently, the Majority's findings can easily lead to absorb impossible interpretations.
The Majority makes another perplexing finding and, in pertinent part, held:
"*** 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 daysfor purposes of contractual benefits (such as rest day per diem). See e.g., Third Division Award 39277, as well as Public Law Board No. 6302, Award 14."
The Majority's finding that observing vacation bars a gang employe from receiving deferred start time is unequivocally wrong. Inaddition to the reasons outlined above, its important to note that there is no provision in the Agreement that eliminates Rule 30's mileage limitations if an employe is not present when the gang initially makes a move. Second, there is no provision in the Agreement requiring employes be present on the day before or the day after the gang makes the assembly point move in order to qualify for deferred start time. Award 40229 rejected the argument that the employe must be present on the day before and the day after a move is made. Third Division Award 40229 outlined a clear distinction between Rule 39 which was relied upon by the Carrier and contains an attendance requirement and Rule 30 and Appendix X-2 which have NO attendance requirement. The pertinent part of Award 40229 held:
"TheBoard notes the significant difference in language between Rule 39 (e) and the third paragraph of Rule 30 (a). Theper diem Rule 39 (e) specifies that the employee claiming per diem must be present on the day preceding and following the rest day. Appendix X establishes that a vacation day represents a voluntary absence that defeats thepayment ofper diem during the rest days that precede the vacation.
Rule 30 (a) does not require employee attendance on the day before or after a move. There is no specific reference in the language or the Appendix to the impact, if any, that employee vacations have on the payment of deferred start straight time pay. There is no language in the Rule or in Appendix X-2 that
suggests that taking a vacation when the Gang executes a move defeats a claimfor deferred start pay to an employee on vacation at the time of the move."
The parties use of an attendance criteria in Rule 39 shows that the parties were capable of drafting an attendance requirement when that was the intent of the parties. The fact the parties did NOT include an attendance provision in Rule 30 (when the parties did include such a provision in Rule 39) establishes the clear intent of the parties was not to have an attendance requirement in connection with deferred starting times. The Majority was wrong to imply any attendance criteria with either the mileage limitations or the right to deferred starting time.
The Majority contended that it was unrefuted during the handling on the property that the Carrier had a practice to grant deferred starting time only to gang members who actually make the move and are performing service both before and after the move. It should be noted that any Carrier contention of a practice is readily refuted by the fact that Award 1 of PLB No. 6244, Third Division Award 40229 and Third Division Award 40938 all have addressed this same issue in the
past. Thus, the notion that the Organization acquiesced to a practice is simply not true and instead this precedent shows that the Organization has actively objected to the Carrier's actions. Moreover Award 1 of PLB No. 6244 and Third Division Award 40229 expressly rejected the Carrier's contention of an unproven practice. The contention of a Carrier practice without proof holds no weight in this dispute whatsoever and the Majority should have not given it any.
The effect of this interpretation punishes employes observing vacations when a change in assembly point move is made. There is no dispute that the vacationing employes are still required to make the same travel as everyone else on the gang. There are no agreement provisions that would relax the mileage limitation in Rule 30 or the process for granting deferred starting time where the Carrier exceeds those limitations as outlined in Appendix X-2.
Deferred starting time is provided to on-line gang employes as time to travel the distance between two (2) assembly points so that the employe can obtain adequate rest. However, an employe cannot obtain adequate rest when they have to make travel during their unassigned hours. Without deferred starting time, the Claimants in this case either had to make the travel during the unassigned hours of their personal time, or during their observed vacation. By doing so, the Carrier siphoned for its benefit the employes' personal time by directing them to make extensive travel during their unassigned hours of their rest periods or vacation days instead of providing those employes the assigned hours to make that travel. Ordinarily being directed to report for duty during unassigned hours or vacation days requires payment to the employe at time and one-half rate of pay. The time and one-half rate insures that employes are given a premium pay when instructed to perform duties on behalf of the Carrier for what is normally their unassigned hours.
For all of the reasons stated above, I emphatically dissent.
Respectfully submitted,
Kevin D. Evanski Labor Member