Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 42148 Docket No. SG-42041 15-3-NRAB-00003-120365
The Third Division consisted of the regular members and in addition Referee Andria S. Knapp when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(BNSF Railway Company
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the BNSF Railway Company:
Claim on behalf of L. W. Crowley, for eight hours pay at the overtime rate, account Carrier violated the current Signalmen's Agreement, particularly Rules 20, 54, and past practice, when it directed him to attend an Investigation on his regularly assigned rest day of February 11, 2011, and then refused to compensate him accordingly. Carrier's File No. 35-11-0025. General Chairman's File No. 11-013-BNSF-20-C. BRS File Case No. 14677-BNSF."
FINDINGS:
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 facts of this case are not in dispute; it is a case of contract interpretation. At the time of the events giving rise to the claim, the Claimant was assigned to Signalman Position S6478 on Crew SSCX0261. By letter dated September 9, 2010, he was notified to report for an Investigation to be held in connection with the charge he allegedly failed to report for duty on September 9, 2010. The letter read:
"Arrange to attend investigation at 0900 hours, Friday, September 17, 2010, at [location omitted] for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged failure to report for duty at the designated time and place on September 9, 2010, while assigned as a Signalman in Burlington, Iowa, headquartered in St. Joseph, Missouri . . . .
Contact [name omitted] with any questions regarding this investigation, postponement, waiver and, if applicable, alternative handling.
Arrange for representation and any witnesses you may desire at the investigation as provided under applicable provisions of the labor agreement . . . ."
The Investigation was ultimately conducted on February 11, 2011, which was a rest day for the Claimant. When the Claimant sought compensation for his time to attend the Investigation, the Carrier refused to pay him, and the Organization filed this claim on his behalf. The Parties having been unable to resolve the matter through the on-property grievance process, it was submitted to the Board for a final and binding decision.
According to the Organization, the Carrier violated Rule 20 - Attending Court or Inquest and Rule 54 - Investigations and Appeals, when it refused to pay the Claimant for attending the Investigation into the charges against him. Rule 20 provides compensation for employees "attending court or inquest under instructions from the Carrier;" for employees who attend an investigation "held on days upon which they are not assigned to perform service," Rule 20 states that "they will be allowed eight (8) hours' pay at time and one-half rate for each such day." The Claimant was ordered by the Carrier to attend the Investigation into the charges against him, and the Investigation was held on one of his rest days. He is clearly covered by Rule 20 and should have been compensated accordingly. In addition to the language of Rule 20, there is a long-standing past practice of compensating employees who have been charged with misconduct for attending their investigations.
The Carrier raises several arguments in support of its position. There is nothing that compels employees to attend investigations into charges against them, so they are not appearing "under instructions from the Carrier," and are, therefore, not covered by Rule 20. In addition, Rule 20 does not cover employees attending investigations: the express language limits the application of Rule 20 to "Employees attending court or inquest," and says nothing about attending internal Carrier investigations. If the Parties wanted to include investigations, they would have put that language into the contract, as prior Agreements demonstrate, and the Board should not read a term into the Agreement that the Parties have not mutually agreed to. Finally, the evidence in the record is not sufficient to establish that there was a past practice of compensating employees that should be found binding. If anything, the evidence shows that employees were not compensated as the Organization claims they were.
The focus of this dispute is Rule 20 of the Parties' Agreement, which states:
"Rule 20 -- ATTENDING COURT OR INQUEST
Employees attending court or inquest under instructions from the Carrier and who lose time as a result thereof, will be paid the equivalent of their regular assigned hours for each day so held. If required to travel they will be paid for travel time. If held on days upon which they are not assigned to perform service, they will be allowed eight (8) hours' pay at time and one-half rate for each such day. Actual necessary expenses will be allowed for each day away from headquarters. Any fees or mileage accruing for such service will be assigned to the Carrier."
According to the Carrier, Rule 20 does not expressly reference internal investigations, and the phrase "court or inquest" is limited to formal judicial proceedings. The meaning of "court" is obvious. It is "inquest" that is the focus of the Parties' dispute. While the word "inquest" may conjure up visions of courtrooms, its meaning is not limited to formal judicial proceedings. According to Webster's Dictionary, one definition of "inquest" is judicial in nature, but "inquest" is also defined as "inquiry; investigation; a quest; a search." More important than any dictionary definition, however, is the meaning that the Parties themselves have invested into the term by their course of conduct over the years. The record includes both lists taken from payroll records of employees who were paid to attend internal investigations. The record also includes a similar list submitted by the Carrier of employees who were not paid. Part of the problem with looking strictly at payroll records is that some employees were not compensated for legitimate reasons (for instance, if the employee did not seek compensation). In the handling of the case on the property, the Organization identified such situations in the list submitted by the Carrier. However, the record also includes statements from a number of Organization officials attesting to the fact that employees have historically been compensated for their time to attend an investigatory hearing into charges against them. The Organization is limited in its ability to make an extensive search of the Carrier's payroll records, and the Board finds the statements both credible and adequate for purposes of establishing the historical practice alleged. On the basis of the record as a whole, the Board concludes that the phrase "court or inquest" in Rule 20 applies to internal investigations as well.
The Carrier also contends that Rule 20 does not apply because employees may choose for themselves whether to attend their investigations and so are not "under instructions from the Carrier" to attend. This argument is not persuasive. The language of the Notice of the Investigation reads like an order to an employee from a supervisor: "Arrange to attend . . ." does not sound like a polite invitation. It is an order, or would reasonably be interpreted as such by an employee on the receiving end of the Notice. The imperative form of the sentence, repeated later in the letter regarding representation and witnesses ("Arrange for representation and any witnesses), brooks little, if any, debat e. (1)Nowhere does the Notice indicate, directly or indirectly, that the employee has a choice to attend.
Moreover, the Carrier's position is somewhat inconsistent. In his September 25, 2011 letter to the Organization, the Director of Labor Relations addressed the fact that there is a PARS pay code for reimbursing employees who attend investigations:
"The mention of a PARS pay code as allegedly supporting payment for principals is incorrect. This particular pay code exists in order to compensate Company witnesses, not principals or their witnesses. It should never be used by Signal employees unless they are actually a witness called by the Company to provide testimony during an investigation." (emphasis added)
This is an admission by the Carrier that witnesses "called by the Company" to testify at an investigation will be compensated. The employee accused of misconduct is the centerpiece of the investigation, its focus. Treating him as if he had not been "called by the Company" to testify is a fallacy. The Parties' Agreement is intended to ensure that employees covered by it are treated fairly and equally. There will surely be times when the Carriers' witnesses will be other BRS-represented employees. Paying some of them, but not others, again violates the mandate in Rule 54 that investigations be "fair and impartial."
Finally, basic principles of contract interpretation require that a contract be interpreted so as to give meaning to all the terms of the contract and to avoid harsh and unjust results. The Carrier initiates disciplinary action when it decides to file charges alleging that an employee has violated some Carrier Rule or policy. When it does so, it must conduct an investigation pursuant to Rule 54 - Investigations and Appeals. The purpose of the investigation is to garner evidence and develop facts relative to the charges against the accused employee. Presumably the individual is innocent until proven guilty, and it is important for the employee to have an opportunity to respond to the charges and to be heard as part of the investigation. The employee who wants to defend him- or herself should not be penalized a day's pay (or overtime, if called in on his or her rest day) for doing so. Under the Carrier's interpretation of Rule 20, even an employee who is ultimately found innocent of any charges would be forced to choose between attending the investigation to answer the charges against him and his paycheck. That is an interpretation of Rule 20 that is inconsistent with the obligation under Rule 54 that investigations be "fair and impartial." That inconsistency can be avoided if Rule 20 is interpreted to cover compensation for employees who attend an investigation into charges against them.
The Carrier also noted that the Claimant was seeking eight hours' pay at the overtime rate, while the Investigation lasted only four to five hours. The Investigation was scheduled on one of the Claimant's rest days. Regarding employees who are required to attend an investigation on a rest day, Rule 20 states: "If held on days upon which they are not assigned to perform service, they will be allowed eight (8) hours' pay at time and one-half rate for each such day." The express language of Rule 20 guarantees eight hours' pay at time and one-half for employees who attend an
investigation "under instructions from the Carrier" on their rest day regardless of the duration of the investigation.
Based on the totality of evidence in the record, the Board concludes that the Carrier violated the parties' Agreement when it refused to compensate the Claimant for attending the Investigation into charges of misconduct against him that was conducted on February 11, 2011. Because the Investigation was held on a day when he was not assigned to perform service, he is entitled by the express language of Rule 20 to be paid for eight hours at time and one-half his normal rate of pay.
AWARD
Claim sustained.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division
Dated at Chicago, Illinois, this 26th day of August 2015.
Carrier Members' Dissent
To
Third Division Aw ard 42148; Docket SG-42041 And Third Division Aw ard 42150; Docket SG-42258
(Referee Andria S. Knapp)
These Aw ards are palpably erroneous because the Board ignored the basic principles of contract construction and prior arbitral precedent concerning pay for Principals attending an "Investigation." Rule 20 clearly and unequivocally states that it only applies to "Court" or "Inquest" proceedings. Neither of these constitute an industrial disciplinary Hearing or "Investigation" as defined in the Agreement betw een the Parties. "Investigation" is a term of art in this industry identifying a very specific type of proceeding.
Loose use of vernacular does not overcome terms of art that are contractually defined; laymen's language or generic dictionary definitions do not trump contract terminology. Obviously, Rule 20 is intended to compensate employees w ho are required by the Carrier to attend actual Court or Inquest proceedings, neither of which is the same as an "Investigation" as defined in Rule 54 of the BNSF/BRS Agreement.
Additional evidence that Rule 20 does not apply to Principals attending their ow n Investigations is the fact that when the Parties intended to include "Investigations," it was clearly spelled out in the Rule. In a predecessor road Agreement, specifically the Joint Texas Divisions (JTD) Agreement effective January 1, 1955, the Rule specifically identified "investigations."
"ATTENDING COURT: Employes attending court, inquests, investigations or hearings, under instructions from the railroad company, w ill be paid compensation . . . . (emphasis added)
Obviously, if the intention of the Parties' skillful negotiators had been to include "Investigations" as that term is defined in the current Collective Bargaining Agreement, then such w ould have been clearly stated in the Rule, as it w as in the predecessor-road Agreement. How ever, it was not.
Arbitral precedent has already ruled that unless an Agreement includes specific language requiring a Carrier to pay a Principal to attend their own "Investigation," they are not entitled to w ages, expenses, or travel time from the Carrier for doing so.
Carrier Members' Dissent
Third Division Award 42148; Docket SG-42041 Third Division Award 42150; Docket SG-42258 Page 2
A few of these Third Division Awards are, again, 1032, 21320, 22506, 23399, and 23962. Also see Second Division Award 12673 and Fourth Division Award 1971.
Incredible as it sounds, the Board also erroneously asserts that past practice trumps clear language. To reach this conclusion, the Board had to ignore years of past arbitral precedent that determined the opposite to be true. It also disregarded the Carrier's evidence that such a practice did not exist. To prove the existence of a binding past practice, the Organization is obligated to prove that the past practice was (a) unequivocal, (b) clearly enunciated and acted upon and (c) ". . . readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties." See, Second Division Award 13760, as well as Third Division Award 34207 cited therein.
The "evidence" presented by the Organization failed to satisfy its required burden of proof as the moving Party because, for one thing, there was clearly no mutuality between BNSF and the Organization concerning this issue, as is evident by the numerous Principals who were not compensated for attending their own Investigations. For another, a negative inference can be drawn from the fact that for decades the Organization failed to file any claims citing a violation of Rule 20 for those employees who were not paid to attend their own Investigation.
The Board then tries to bolster its fallacious ruling by asserting that a Principle is "under instructions from the Carrier" to attend the "Investigation" and, therefore, is entitled to compensation. The Board states that the language "Arrange to attend" is not permissive; rather it is an imperative form placing the employee under the direction of the Carrier as stated in Rule 20. Even if Rule 20 applied, which it does not, Principles have never been charged with failing to comply with such instructions if they elect not to attend. Nor have they been charged with a failure to comply with such instructions if they chose not to "Arrange for representation and any witnesses . . . ."
Nor is the Carrier's position inconsistent. Simply because the Carrier has a pay code to pay certain employees to attend an "Investigation" does not constitute entitlement to pay for Principles or witnesses called by the Claimant under Rule 20. For one thing, the Organization never argued that Rule 20 applied to witnesses who the Principal or the Organization ask to attend an Investigation. Why then would the Carrier compensate the Principal, whose alleged misconduct put the Carrier to the trouble and inconvenience of holding the Investigation? Furthermore, the Organization's argument would result in employees who are guilty of violating the Carrier's Rules being rewarded for their misconduct. That would be absurd.
Carrier Members' Dissent
Third Division Award 42148; Docket SG-42041 Third Division Award 42150; Docket SG-42258 Page 3
The fact that a Collective Bargaining Agreement does not address an issue that the Organization or the Board believes it should is not evidence that another Rule in that Agreement was "intended" to apply instead. What this actually means is the Parties failed to reach an agreement on the issue. Rule 54 includes language for the handling of employees ultimately found blameless and for those who are reinstated but without a finding of innocence. There is no reason to believe that if the Parties had intended for Principals to be compensated, they would not have said so in this Rule. There is no excuse for the Board's improper attempt to twist another Rule to "fix" its perceived inequity.
For the foregoing reasons, we vigorously dissent.
April 21, 2016
Michael C. Lesnik Michael C. Lesnik Carrier Member There certainly may be employees who elect not to attend their investigations, but they are the exception rather than the rule.