Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42859 Docket No. SG-43242 18-3-NRAB-00003-150424

The Third Division consisted of the regular members and in addition Referee Patricia Bittel 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 Railw ay Company:

Claim on behalf of E.M. Grove, C. Lueck and A.R. Reinhofer for Claimant Grove, hour at his straight time rate of pay, 9 hours at his half time rate of pay, and hours at his double time rate of pay; for Claimant Lueck, 5.5 hours at his straight time rate of pay and hours at his half time rate of pay; for Claimant Reinhofer, 17 hours at his straight-time rate of pay and 8.5 hours at his half time rate of pay; account Carrier violated the current Signalmen's Agreement, particularly Rules 10, 11, and 45, when, on February 7 9, 2014, i t held the Claimants on duty at the motel for anticipated storm coverage and then failed to compensate them. Carrier's File No. 35 14 0028.

General Chairman's File No. 14 014 BNSF 188 SP. BRS File Case No. 15187 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.

A severe w inter storm w as projected to dump excessive amounts of snow beginning the evening of Friday, February 7, 2014. At approximately noon on February 7, the crew was released to their hotel so they would be available to perform any needed emergency w ork. The employees w ere compensated for their time w hen called in to w ork on Friday, February 7; Saturday, February 8, and Sunday, February 9.

Applicable provisions of the parties' collective bargaining agreement state as follow s in pertinent part:

"RULE 10. OVERTIME-HOURLY RATED EMPLOYEES:

A. Time w orked preceding and continuous w ith a regularly assigned work period w ill be paid for on the actual minute basis at time and one-half rate, w ith a minimum of one hour at time and one half rate and payment of double time rate after sixteen (16) hours of work in any twenty four (24) hour period. An employee required to work eight (8) or more hours preceding and continuous with his regularly assigned work period will be paid at time and one half rate for work performed during the regularly assigned work period.

B. Time worked following and continuous with a regularly assigned work period will be paid for on the actual minute basis at time and one-half rate, with payment at double time rate after sixteen (16) hours of work in any twenty-four (24) hour period.

RULE 11. Calls

A. An employee notified or called to perform work outside of and not continuous with his regular work period will be paid a minimum of two (2) hours and forty (40) minutes at time and one-half rate and if held on duty in excess of two (2) hours and forty (40) minutes, time and one half w ill be allow ed on the minute basis, with payment at double time rate for w ork in excess of sixteen (16) hours of continuous w ork.

B. The time of an employee w ho is notified prior to release from duty will begin at the time required to report at designated point at headquarters and end w hen released at such point. The time of an employee w ho is called after release from duty w ill begin at the time called and end at the time he returns to designated point at headquarters.

NOTE: In the application of paragraph A of this rule an employee w ill not he released from duty for the purpose of breaking the continuity of overtime w ork.

RULE 12. SUBJECT TO CALL

A. An employee assigned to regular maintenance duties w ill notify the person designated by the Carrier w here he may be called by filing his home address and telephone number, if he has a telephone, w ith such person. An employee called to perform w ork outside of assigned working hours w ill respond promptly when called. The regular assigned employee, if available, w ill be called for such w ork on his assigned territory.

B. Should an hourly rated employee assigned to regular maintenance duties desire to temporarily absent himself from the designated place where he may be called and should such an employee desire to be called during such temporary absence, such an employee must keep the person designated by the Carrier notified at all times w here he may be called.

C. An hourly rated employee assigned to regular maintenance duties desiring to leave the designated place w here he may be called on his rest day w ill, if possible, notify the person designated by the Carrier when he expects to leave and return to such place.

D. Monthly rated employees assigned to regular maintenance duties recognize the possibility of emergencies in the operation of the railroad, and w ill notify the person designated by the Carrier w here they may be called. When such employees desire to leave their headquarters or section, they w ill notify the person designated by the Carrier that they w ill be absent, about w hen they w ill return, and w hen possible w here they may be found.

RULE 16.

Hourly rated Signalmen required to relieve on monthly rated Signal Maintainer positions will be compensated at the monthly rate of pay. Also, if they are called out before or after the usual hours of the monthly rated position to perform signal work or if engaged in such signal work at the end of the usual working hours for the position (except as otherwise provided in Rule 45), all time will be paid at the overtime rate of pay.

RULE 45. RATES OF PAY

A. The monthly rates cover all services rendered except as otherwise provided herein. * * *

C. (prior now eliminated) When a monthly rated employee is called out before or after his usual ours to perform signal work or is engaged in such signal work at the end of his usual working hours (except as otherwise provided in Rule 45), all time in excess of three (3) calls or ten (10) actual hours in any calendar month will be paid at the overtime rate of pay except that in the case of Signal Electronic Technicians, Signal Inspectors, Maintenance Foremen and Signal Construction Crew Foremen, all time in excess of four (4) calls or fifteen (15) actual hours in any calendar month will be paid at the overtime rate of pay. (Paid overtime does not count toward 3 10 or 4 15 non comp time.)

C. (current) When a monthly rated employee is called out before or after his usual hours to perform signal work or is engaged in such signal work at the end of his usual working hours (except as otherwise provided in Rule 45), all time will be paid at the overtime rate of pay.

D. Monthly-rated employees shall be assigned one regular rest day per calendar w eek (Sunday, if possible). Overtime rules applicable to other employees w ho are subject to the terms of the Signalmen's Agreement will apply to service which is performed by monthly-rated employees on such assigned rest day. * * *

E. If ordinary inspection, construction or maintenance work is performed on the sixth day of the w ork week or outside usual hours, such w ork shall be paid at the overtime or double time rate of pay as the case may be. * * *

I. The method of operation to be used for all monthly rated maintainers shall be on the follow ing basis: The full w orkdays shall be Monday through Friday, w ith the "rest" and "subject to call" days alternated on adjacent districts.

EXAMPLE: District A w orks Monday through Friday. Subject to call day Saturday on Districts A and B. Rest Day Sunday. District B w orks Monday through Friday. Rest Day Saturday. Subject to call day Sunday on Districts A and B.

NOTE: In the application of this paragraph 1, Signal Maintainers may exchange w eekend protection, and w ill be compensated as follows.

EXAMPLE: The normal protection day for District A is Saturday, with Sunday as his rest day. He agrees to protect both his own and another signal maintainer's district on Saturday and Sunday. If he is called for emergency signal service on the other signal maintainer's district on Saturday, he w ill be paid overtime, but not if he is called on his ow n district unless he has exceeded 3 calls or 10 actual hours in that month. If he is called on the other signal maintainer's district on Sunday, he w ill not be paid overtime unless he has exceeded 3 calls or 10 actual hours in that month but w ill be paid overtime if he is called on his ow n district. Every tw o (2) months the protection day and rest day for all districts is reversed, consequently the above example would be reversed." During extreme adverse w eather conditions, the Carrier may require signal maintainers to protect according to the regular schedule."

The Organization grieved, asserting these employees had been denied overtime compensation in violation of Rule 10 (A) & (B); Rule 11(A) & (B), and Rule 45 of the BNSF/BRS Agreement.

The parties to said dispute w ere given due notice of hearing thereon. Failing to resolve the matter, the Organization referred this dispute to the National Railroad Adjustment Board ("NRAB") for arbitration. This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The Carrier asserts the compensation given w as in accordance w ith Third Division Aw ard 41683 and therefore proper. In that case, a crew was returned to an away from-home hotel in the middle of their schedule to rest for the next day's work. While the neutral did not provide a detailed explanation regarding the relevance of the foreman being off his assigned territory, the Carrier contends he correctly ruled that the monthly-rated employee was not due any additional compensation.

As the Carrier sees it, no work or service was performed by Claimants after their release from duty around noon on Friday, February 7, 2014 and before the start or their regular shift at 7:00 am the following Monday, February 10, 2014. It argues overtime and double time rates are only payable when an employee performs work for the Company. It maintains being available to answer the phone does not constitute "work" within the meaning of Rule 11. It explained that monthly-rated construction crew foremen are required to be available 24 hours a day six days a week in the same manner as all other monthly-rated assignments.

The Organization calculates its claim as follows:

"Claimant Grove, a monthly-rated foreman, is owed 24 hours at double time rate of pay, 1 hour of straight time rate of pay and 9 hours at half-time, detailed as follows:

1. February 7, 2014: he was paid from 1330-2200 at straight time when entitled to time and one-half;

2. February 8, 2014: he was not paid from 0600 hours to 0600 hours February 9;

3. February 9, 2014; he was paid 1 hour from 0600-0700 at straight time when entitled to double time.

Claimant Lueck, an hourly signalman, is owed 15 1/2 hours at straight time and 11 hours at time and one-half, detailed as follows:

1. February 7, 2014: he was paid from 1230-2200 at straight time when entitled to time and one-half;

2. February 8, 2014: he was paid 1 1/2 hours at time and one-half from

0600 to 0730. when entitled to double time; he was paid from 07302200 hours at straight time when entitled to double time;

3. February 9, 2014: he was paid one hour of straight time from 0600

0700 when entitled to double time.

Claimant Reinhofer, an hourly signalman, is owed 17 hours at straight time and 8 ½ hours at time and one-half, detailed as follows:

1. February 7, 2014: he was paid from 1330 to 2200 at straight time when entitled to time and one-half;

2. February 8, 2014: he was paid from 0600 to 2200 at straight time when entitled to double time;

3. February 9, 2014: he was paid from 0600 to 0700 at straight time when entitled to double time."

The Organization notes all the Claimants were held on continuous from 0600 on Friday, February 7, 2014, until 0700 on Sunday, February 9, 2014. It asserts they were not released from duty at any time during the period and were required to stand by to immediately respond for call. It argues that to be held and required to standby for immediate response is considered work or service as has been confirmed by numerous NRAB Awards.

It contends Third Division Award 41683 does not apply because the award was limited to the circumstances of the case. It argues all non-compensated service under the monthly-rate was eliminated when Rule 45 was renegotiated in 2007. In its view, the Carrier's interpretation of Rule 45, that a foreman has a "six-day protection schedule," is absolutely wrong.

In Third Division Award 41683, a foreman and crew were instructed to leave work and go to a motel in preparation for an ice storm that never materialized. They w ere paid for the day they w ere sent home but nothing else. Neutral Member Roger MacDougall found the Carrier's argument "disingenuous" and granted the crew additional pay but denied the foreman compensation. The Aw ard states it "is limited to the specific circumstances of this case. " In the view of this Board, this statement makes it clear that Aw ard 41683 was not intended to serve as precedent in interpreting the contractual provisions at issue. As a result, this Board must look elsew here for guidance.

As explained more fully in Aw ard 42856, the history of arbitral interpretation has recognized call status as "w ork" w ithin the meaning of Rule 11 if the employee remains under the Carrier's control and is severely restricted in terms of freedom of movement and activity. The Carrier's cited exceptions to the requirement of recognizing call time as "w ork" under Rule 11 specify factual criteria indicating that the employees in question w ere not under the Carrier's control and therefore should not be considered as having w orked.

Though the record in this case leaves much to be desired, the Board is persuaded by the nature of the situation that in all likelihood the hourly Claimants here concerned w ere advised to stay at the hotel in order to maintain availability. An ice storm w as impending and w ere the Carrier to allow the employees to w ander about tow n, response time w ould likely be compromised. This circumstantial evidence persuades the Board that the Claimants w ere in fact restricted to the hotel and w ere required to be ready at all times for immediate deployment.

The situation of the foreman is different because he w as a monthly-rated employee subject to an alternative pay schedule. The issue remains concerning compensation for Foreman Grove outside of his on-call requirements, on a rest day(s). The Board believes that the Claimant Grove should have received compensation just as his hourly-rated counterparts did on their rest day. The foreman's protect "day" requires him to be available for 24 hours. We are not persuaded that he is due any additional compensation for the emergency call time in question on his protect day. How ever, the time the foreman w as asked to be available on his rest day w ould w arrant compensation.

The claims are sustained in part. The Carrier w ill compensate Claimants in accordance w ith the rulings herein. It shall be credited for any compensation already made.

AWARD

Claim sustained in accordance with the Findings.

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 10th day of January 2018.