Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43050 Docket No. SG-43238 17-3-NRAB-00003-150223

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 Railway Company:

Claim on behalf of D.P. Albarado, J.F. Donatucci, J.D. Gilmore, L.M. Guidry, C.J. Hebert, G.M. Taylor and K.J. Wiltz, for 16 hours each at their respective time and one-half rate of pay and 17.5 hours each at their respective double-time rate of pay, account Carrier violated the current Signalmen's Agreement, particularly Rules 45 and 11, when it held the Claimants on duty October 5-6, 2013, and then refused to compensate accordingly. Carrier's File No. 35-14-0013. General Chairman's File No. 13-050-BNSF-121-T. BRS File Case No. 15116BNSF."

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 tropical storm was projected to cause significant damage in Louisiana and Texas over the weekend of October 5, 2013. The Claimants are monthly-rated Maintainers who were asked to remain available and protect according to their normal schedules. They were compensated for their time on Saturday, October 5 and Sunday, October 6 at straight time.

The Organization claimed violation of Rule 45, Rule 11(A), Rule 11(B), and Rule 11 NOTE of the BNSF/BRS Agreement and the matter was processed to arbitration. This Division of the Adjustment Board has jurisdiction over the dispute involved herein. Parties to said dispute were given due notice of hearing thereon.

Pertinent provisions of the parties' collective bargaining agreement provide as follows:

"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 onehalf will be allowed on the minute basis, with payment at double time rate for work in excess of sixteen (16) hours of continuous work.

B. The time of an employee who is notified prior to release from duty will begin at the time required to report at designated point at headquarters and end when released at such point. The time of an employee who is called after release from duty will 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 will not be released from duty for the purpose of breaking the continuity of overtime work.

RULE 12. SUBJECT TO CALL

A. An employee assigned to regular maintenance duties will notify the person designated by the Carrier where he may be called by filing his home address and telephone number, if he has a telephone, with such person. An employee called to perform work outside of assigned working hours will respond promptly when called. The regular assigned employee, if available, will be called for such work 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 where he may be called.

C. An hourly rated employee assigned to regular maintenance duties desiring to leave the designated place where he may be called on his rest day will, 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 will notify the person designated by the Carrier where they may be called. When such employees desire to leave their headquarters or section, they will notify the person designated by the Carrier that they will be absent, about when they will return, and when possible where they may be found.

RULE 45. RATES OF PAY

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

C. 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 week (Sunday, if possible). Overtime rules applicable to other employees who 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 work week or outside usual hours, such work 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 following basis:

The full workdays shall be Monday through Friday, with the "rest" and "subject to call" days alternated on adjacent districts.

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

NOTE: In the application of this paragraph T, Signal Maintainers may exchange weekend protection, and will 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 will be paid overtime, but not if he is called on his own 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 will not be paid overtime unless he has exceeded 3 calls or 10 actual hours in that month but will be paid overtime if he is called on his own district. Every two (2) months the protection day and rest day for all districts is reversed, consequently the above example would be reversed.

During extreme adverse weather conditions, the Carrier may require signal maintainers to protect according to the regular schedule."

The Carrier asserts it acted pursuant to Rule 45I, which states "During extreme adverse weather conditions, the Carrier may require signal maintainers to protect according to the regular schedule." It contends Claimants were properly compensated as outlined pursuant to Third Division Award 41683. Its position is that monthly-rated maintainers were required to protect their normal schedule, meaning neither day was a "rest day" as alleged by the Organization. The Carrier also contends that monthly-rated construction crew foremen are required to be available 24 hours a day, six days a week in the same manner as are all other monthly-rated assignments.

The Carrier notes that Rule 45E clearly states that only ordinary inspection, construction or maintenance work qualifies a monthly rated employee to additional pay on their protect day or after their usual hours. In its view, being asked to answer the phone during their normal protection schedule does not meet that requirement.

The Organization argues that Signal maintainer positions on the Lafayette Subdivision are assigned work week of five (5) eight (8) hour days, hours 0630-1530, and subject to call day Saturday with a rest day Sunday. However, it asserts they had exchanged weekend protection, and both Saturday and Sunday were their rest days. It contends all were instructed by the Carrier to standby the phone and be available for call from 6:30 am on Saturday, October 5, continuing until midnight on October 6. As such, it insists they were entitled to overtime pay for both days.

On Tuesday October 15, the Claimants received the following instructions from supervision:

"All,

First off, it is important to remember that everyone's situation will be different for various reasons (vacations, etc.); therefore, any conversations that happen need to be between me and that individual. Also, if you were already scheduled to be on-call that weekend, then these instructions will not apply to you.

• Friday, October 4th -You were scheduled to work and protect until Saturday morning

• Saturday, October 5th -If I held you on, then you will charge your time starting at 0700 until midnight at regular time (17 straight time hours). This will be in addition to the 8 hours of protect pay based on how we are currently rotating. Please use paycode 09.

• Saturday at midnight to Sunday at midnight you will charge pay code 09- 24 hours at regular time.

If there is any disagreement, then rule 45-I may apply and we will go back to protecting one weekend day every week.

Finally, if there are any questions or problems entering time, please call me. Thank You."

This memo confirms the Organization's assertion that the employees in question had traded rest days to have two in one weekend and none in the next. Under Rule 45 "During extreme adverse weather conditions, the Carrier may require signal maintainers to protect according to the regular schedule." This provision permits the Carrier to require the signal maintainer to retain signal maintainers in call status when faced with extreme adverse weather conditions.

The provision requires that such retention be in accordance with the maintainer's regular schedule. Under Rule 45I, the method of operation is described as: "The full workdays shall be Monday through Friday, with the 'rest' and 'subject to call' days alternated on adjacent districts." The provision goes on to allow for exchange of weekend protection with those districts.

The Board finds that the regular schedule is Monday through Friday, with a call day and a rest day over the weekend. The fact that the schedule can be changed does not alter the finding that the 'regular schedule' includes one call day and one rest day over the weekend; alternative schedules are just that: alternatives to the regular schedule. It follows that Rule 45I requires payment for maintainer call status during extreme weather conditions to be in accordance with the regular schedule, defined as including one call day and one rest day in the work week. Since monthly-rated maintainers are already in call status one weekend day, no additional compensation is due for that day.

The record indicates the Claimants were asked to stand by for call out, but were not restricted to a particular location identified by the employer. The fact that they were free to go home exempted them from the employer's control and rendered the applicability of contractual provisions regarding "work" inapplicable; they were not working. However, because they were required to be available for call on their rest days, compensation as established for call status was due.

The claim is granted in part. The Carrier will compensate Claimants in accordance with the foregoing rulings. The Carrier shall be credited with 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 2nd day of May 2018.