Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 42607 Docket No. SG-43169 17-3-NRAB-00003-150366
The Third Division consisted of the regular members and in addition Referee Roger K. MacDougall when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Union Pacific Railroad:
Claim on behalf of C. E. Allen, E. H. Carpenter, N. A. Cleveland, J.
B. Cole, R. L. Cole, C. J. Elliott, R. Linn, C. C. Meeds, R. Q. Norman, S. E. O'Neal, M. L. Tyron and M. H. Weir, for each to receive the $9.00 for every twenty-five (25) miles they traveled from their work location, Little Rock, Arkansas, to their residence, at the end of their work period on March 12, 2014, account Carrier violated the current Signalmen's Agreement, particularly Rules 26 and 65, when it refused to compensate the Claimants for this travel. Carrier's File No. 1604057. General Chairman's File No. UPGCW26-0183. BRS File Case No. 15154-UP."
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.
This is a case involving claims for mileage at the end of the work week. The claims will turn on the interpretation of what, exactly, is the end of the work week.
The rules in question are as follows:
"RULE 26 - TRAVELING GANG WORK
The territory of the Union Pacific Railroad coming under the jurisdiction of this collective bargaining agreement will be divided into five work zones, as per Rule 34:
Zone 1: Territory covered by seniority districts 1, 2, 3 and 4 Zone 2: Territory covered by seniority districts 5, 6, 7 and 8 Zone 3: Territory covered by seniority districts 9, 10 and 11 Zone 4: Territory covered by seniority district 12 Zone 5: Territory covered by seniority district 14
If a gang is to be a mobile gang, it will fall under this Rule, unless it is a per diem gang established under Memorandum Agreement July 18, 1997 (See Appendix I).
Employees on zone gangs will work a schedule of either eight (8) days on and six (6) days off or twelve (12) days on and nine (9) days off. It is the intent of the parties to work employees on an eight (8) days on and six (6) days off schedule when possible given the operating requirements of the Carrier. In the event that the Carrier must work zone gangs on an eight (8) days on/six (6) days off schedule on their rest days, the Carrier will guarantee a minimum of four (4) consecutive rest days off between work periods. In the event the Carrier must work zone gangs on a twelve (12) days on/nine (9) days off schedule on their rest days, the Carrier will guarantee a minimum of six (6) consecutive rest days off between work periods. The work schedule of gangs working compressed schedules of either eight (8) days on and six (6) days off or twelve (12) days on and nine (9) days off will, with a majority vote of all members of the gang, commence their work schedule on either a Tuesday or Wednesday.
At management's request Zone Gangs, with the unanimous concurrence of the gang members, may elect to accept a work schedule of 4 days on and 3 days off. Such election will not reduce the $9.00 per 25 mile travel allowance. Consistent with operational needs, Zone Gangs, with the unanimous concurrence of the gang members, may request to work a schedule of 4 days on and 3 days off. Such request will result in the reduction of the travel allowance to $4.50 per 25 miles.
For employees on a zone gang, time begins and ends at the common lodging facility.
NOTE: As an example, if a zone gang is working eight on and six off and the Carrier works them for fourteen (14) days straight, they will have the first four (4) days of their work week off and paid at straight time (according to the work schedule) and then they complete their work period by working four (4) days then having their six (6) days off. Zone gang employees will be reimbursed for actual and necessary expenses (lodging and meals). Employees will receive $15.00 incidental expense allowance per day worked. Employees will receive $9.00 for every twenty five (25) miles traveled from home to work at the beginning and end of each work period. The Carrier will give employees notice of work schedules and locations, except in emergency circumstances, so they can plan their travel. If a mobile unit is moved and employees assigned thereto are not able to move their vehicle during the time the mobile unit is being moved, the employees will be returned to the location of their vehicle at the Company's expense. If an employee stays at the work location on the employee's days off, meal and lodging costs will be paid by the Carrier, not to exceed the allowance the employee would have received for mileage home. If an employee travels to a location other than home during the employee's off days, the employee will receive mileage payment ($9.00 per 25 miles) for the lesser of the travel to the employee's home or the actual travel incurred. If an employee travels home everyday, the employee will not receive $9.00 per 25 miles allowance, but will receive the $15.00 daily incidental expense allowance for each day worked and paid noon meals.
NOTE: It is agreed between the parties that these costs and allowances will be reviewed by the Carrier and Organization at three (3) year intervals.
Zone gangs may be at any location performing any agreement work. Zone gangs performing work on its own zone and on a seniority district where there are involuntarily furloughed employees will be headquartered or abolished at the written request of the General Chairman. Zone gangs will not work across zone lines if employees are involuntarily furloughed in the seniority district where the work is located. If a zone gang is performing work off of its zone, the employees of that gang will receive one and onehalf time pay, up until the employees of the gang qualify for double-time, at which time they will be paid at the double-time rate.
RULE 65 - LOSS OF EARNINGS
An employee covered by this agreement who suffers loss of earnings because of violation or misapplication of any portion of this agreement will be reimbursed for such loss."
There is no dispute over the essential facts of this case. The Claimants were working a shift comprised of eight days on and six days off installing Positive Train Control systems in Arkansas. On the eighth day, the Claimants were allowed to leave early to catch flights home. They worked, and were paid, for five hours of their tenhour shift. They put in for vacation pay for their last five hours of the day, which the parties agree were not worked.
There is some dispute as to whether the Claimants were properly allowed to leave early. Upon a full review of the record, the Board finds that the people on site did allow them to leave early. This decision was later overridden by a supervisor who was not on site.
There is also some controversy over past practice with respect to leaving early on the last day of work. For the reasons given below, the Board need not deal with these arguments.
The Carrier argues that, for the end-of-workweek mileage payments to kick in, the employees must actually work to the end of their work cycle. The Organization points out that, if this were the case, leaving one minute early on the eighth day would result in a denial of the mileage payment. They suggest this does not make sense and does not comport with a reasonable interpretation of the language of the agreement.
The Board recognizes that, when interpreting language of the parties, it must be reasonable. It is not allowed to step outside the bounds of what the parties have agreed to. To do so would be an excess of authority or jurisdiction. However, it also recognizes the important role it plays under the Railway Labor Act in assisting the parties in (if not making) at least maintaining Agreements which foster industrial peace and common sense interpretations of the Agreements.
This Board finds the arguments of the Organization persuasive. Leaving one minute early should not dis-entitle employees to the benefits for which the Organization has bargained. Leaving five hours early in an 80 hour work cycle, at least upon these facts, should not have that effect either. The Carrier always had the option to say no, initially. They could have made it very clear that their policy is to work the full 80 hours, otherwise the travel payments shall not apply. They still have the option of so doing (the Board need not and will not comment on the advisability of so doing). At the very least, they could have put in place a rule whereby some person in authority must pre-authorize the early departure. However, based on the particular facts of this case, the Board finds that the Organization has met its burden of proof.
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 19th day of April 2017.
CARRIER MEMBERS' DISSENT
to
THIRD DIVISION AWARD 42607 - DOCKET SG-43169
(Referee Roger K. MacDougall)
The Carrier must respectfully dissent to the Board's decision to award travel payment to employees who unilaterally elected to leave work prior to the end of their assigned work cycle. Such decision is not only inconsistent with the clear and unambiguous language of Rule 26 ("beginning and end of each work period"), but the subsequent arbitral decisions that have reviewed that language.
Contrary to the Board's finding, the Carrier maintains that the record does not establish that Claimants obtained proper authority from Management to leave work early. Absent obtaining permission from an authorized manager, the employees were expected to complete their assigned schedule. This they did not do.
The Carrier is further troubled by the Board's discussion regarding the Organization's "leaving one minute early" argument. This hypothetical fact pattern was not part of the on-property record, and should never have been a factor in deciding the case at hand. This was not a situation where an employee left "one minute early," but rather a group of employees who were caught at the airport prior to completing even half of their assigned work day. The decision to disallow travel payment in such circumstances was entirely reasonable.
For the foregoing reasons, the Carrier maintains that the Board erred
in sustaining the Organization's claim for travel pay in this case. While the Carrier
will comply with the Award, it finds that the decision does not establish precedent as
a result of the issues discussed above.
April 19, 2017
Matthew R. Holt Matthew R. Holt