Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No.44650 Docket No. SG-45901
22-3-NRAB-00003-200242
The Third Division consisted of the regular members and in addition Referee Andria S. Knapp when award was rendered.
PARTIES TO DISPUTE:
(BROTHERHOOD OF RAILWAY SIGNALMEN
NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK)
STATEMENT OF CLAIM:
“Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the National Railroad Passenger Corporation (Amtrak).
Claim on behalf of J.S. Creger, for the re-establishment of a regular work week of Monday through Friday with consecutive rests days of Saturday and Sunday, and compensation at his overtime rate of pay for all hours worked on Saturday and Sunday and eight hours at the straight time rate of pay for every Monday and Friday he is denied the ability to work starting on August 2, 2018, and continuing until he is returned to his traditional Monday through Friday work week; account Carrier violated the Signalmen’s Agreement, particularly Rule 20, when on July 23, 2018, it arbitrarily changed the Claimant’s regular work week without substantiating an operational problem that could not be met with the traditional five day work week with rest days of Saturday and Sunday. Carrier's File No. BRS-SD-1277. General Chairman's File No. 20181067. BRS File Case No. 16208-NRPC(S). NMB Code No. 32.”
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 Parties’ Agreement includes a provision, Rule 20, titled “Work Week.” Rule 20 states, in relevant part:
The established work week for all employees covered by this Agreement, subject to the exceptions contained in this rule, is forty (40) hours, and consists of five (5) days of eight (8) hours each, with two (2) consecutive days off in each seven or, four (4) days of ten (10( hours each with three (3) consecutive days off in each seven. Four day assignments shall not be established for individual maintenance positions except by agreement of the parties. The work week may be staggered in accordance with the Carrier’s operational requirements. So far as practicable; the days off for five day assignments shall be Saturday and Sunday; for four day assignments, Friday, Saturday and Sunday or Saturday, Sunday, and Monday. The observance of any of the recognized holidays as specified in this agreement will not be construed as a reduction in assigned working time for the week in which such holiday falls. . . .
The expressions ‘positions’ and ‘work’ as used in this rule refer to services, duties, or operations necessary to be performed the specified number of days per week, and not to the work week of individual employees.
On positions the duties of which can reasonably be met in five (5) days, the days off will be Saturday and Sunday.
When the nature of the work is such that employees will be needed six (6) days each week, the rest days will be either Saturday and Sunday, or Sunday and Monday.
On positions which are filled seven (7) days per week, any two consecutive days may be the rest days, with the presumption in favor of Saturday and Sunday.
(e) . . . . .
If, in positions or work extending over a period of five (5) days per week and operational problem arrives [sic] which the Company contends cannot be met under the provisions of paragraph (b) of this section and requires that some of such employees work Tuesday through Saturday instead of Monday through Friday and, if the Chief Engineer (C&S) and
the General Chairman fail to agree thereon, then if the Company nevertheless puts such assignments into effect, the dispute may be processed as a grievance or claim under this agreement.
The typical work week will be one with two consecutive days off, and it is the carrier’s obligation to grant this. Therefore, when an operating problem is met which may affect the consecutiveness of the rest days or positions or assignments covered by paragraphs (b), (c) and (d), the following procedures shall be used:
All possible regular relief positions shall be established pursuant to paragraph (e).
Possible use of rest days other than Saturday or Sunday, by agreement or in accordance with other provisions of this agreement. . . .
(8) If the parties are in disagreement over the necessity of splitting the rest days on any such assignments, the carrier may nevertheless put the assignments into effect subject to the right of employees to progress the dispute as a grievance or claim under this agreement and in such progression, the burden will be on the carrier to prove that its operational requirements would be impaired if it did not split the rest days in question and that could be avoided only by working certain employees in excess of five days perweek.”
. . . .
According to the Organization, the standard Monday through Friday work week was established in 1949. Emergency repair work occurring on Saturdays or Sundays, or otherwise outside of regular working hours was accomplished using a call list, and paid at the overtime rate.
At the time this dispute arose, the Claimant was a Signal Maintainer headquartered at Jackson, Michigan.
Between June and August of 2018, the Carrier abolished a number of five-day Signal Maintainer positions scheduled to work Monday through Friday on its Michigan line and re-established them as positions with rest days other than Saturday and Sunday. The Organization filed claims for the-established positions, alleging that the Carrier violated Rule 20 when it unilaterally abolished the Monday through Friday positions and re-bulletined them with rest days other than Saturday and Sunday, without establishing an operational necessity to do so. The evidence in the record is insufficient to support the Carrier’s position that there was an operational necessity to deviate from the work hours established in Rule 20, or that it was no longer practicable to complete the work on a
Monday through Friday work week.
According to the Carrier, it has had difficulty in finding employees to respond to weekend trouble calls, as well as pressure to reduce passenger delays on the Michigan Line. In response, the Carrier abolished several positions and reposted them with alternative rest days. Rule 20 allows for such staggered work weeks in accordance with operational requirements, and there is arbitral precedent in support of the Carrier’s decision to stagger the work week based on its need for seven-day coverage to reduce delays and improve service for passengers. The Carrier asserts that the Organization has failed to meet its burden to prove that the Carrier’s operational requirements are not better served by the changes.
The language of Rule 20 is clear and explicit in establishing Saturday and Sunday as the standard rest days for employees working a normal five-day work week “so far as practicable":
The established work week for all employees covered by this Agreement, subject to the exceptions contained in this rule, is forty (40) hours, and consists of five (5) days of eight (8) hours each, with two (2) consecutive days off in each seven . . . . . So far as practicable; the days off for five day assignments shall be Saturday and Sunday; (Emphasis added).
Indeed, Rule 20 expressly states that there is a presumption in favor of Saturday and Sunday rest days.
On position the duties of which can reasonably be met in five (5) days, the days off will be Saturday and Sunday.
When the nature of the work is such that employees will be needed six (6) days each week, the rest days will be either Saturday and Sunday, or Sunday and Monday.
On positions which are filled seven (7) days per week, any two consecutive days may be the rest days, with the presumption in favor of Saturday and Sunday. (Emphasis added)
Saturday and Sunday rest days are so well-established that Rule 20 includes special provisions for dealing with proposed changes to them. (See Rule 20 (g) et seq.)
The record includes prior Board awards that both sustain and deny similar claims. The consistent logic in those awards is that the employer has the obligation to establish an operational necessity to deviate from the stringent rest day requirements of Rule 20, and this Board adopts that allocation of the burden of proof. In Award No. 35564, the Board set forth a detailed analysis of the same rest-day issue, and concluded:
These early cases laid down the guiding principle, followed in all of the better-reasoned cases decided in the last forty years that the language appearing in Rule 15(a) and (b)—equivalent to Rule in these claims— creates a rebuttable presumption that existing five-day operations staffed by positions with a Monday-Friday work week and Saturday- Sunday rest days should not unilaterally e changed to seven-day operations with other then Saturday-Sunday rest days. A Carrier invoking the language of Rule (15—in this case, Rule 20) —to do so bears the burden of rebutting that presumption by producing clear and convincing evidence of necessity due to a material change of operational requirements, i.e., bona fide operational need to make the change. It is well established that railroading, per se, has always been a “24/7" operation and avoidance of overtime payments to incumbents of five- day positions for occasionally necessary Saturday-Sunday work is not alone an "operational necessity" sufficient to overcome the presumption [of Saturday-Sunday rest days.]
According to the Carrier, the seven-day positions were established to meet its operational needs (“to protect and support revenue service”) and the changes were permitted by Rule 20.
These claims arise in the context of a long-standing history of scheduling signal maintenance employees Monday through Fridays. The Board is mindful of the Carrier’s point that operating a railroad is a 24/7 proposition, which requires operational flexibility. That is true, but the parties nonetheless negotiated work rule provisions establishing Saturday and Sunday as the standard rest days decades ago. The rest day language has been in existence since the late 1940s.
Precedent requires that the Carrier establish the “operational necessity" to change the five-day positions to seven-day positions with alternate rest days. Or that the Carrier demonstrate that it is no longer “practicable," as it has been for seventy years, to schedule its signal maintainers to five-day positions with Saturday and Sunday rest days. Does the evidence in the record do that?
The record includes call records that show the Carrier's callout efforts for
Saturday
and Sunday trouble calls from 2016-2019. What the records do not show, however, is that it has become more difficult to fill the trouble calls than it has been in the past or that there have been any actual and significant changes in Operational necessity over the period covered by the records. There are several statements in the record from individual managers attesting to problems filling trouble calls at specific locations on specific dates. But such evidence is insufficient to establish the objective level of change required to rebut the presumption that the five-day positions at issue should remain five- day positions. What evidence would rebut the presumption? If the Carrier could show that there was an objective decline in its ability to complete trouble calls over a period of time, that would be sufficient. For instance, if it could show that the trouble call response time had increased by, say 25%, over the preceding two years, that would be objective evidence of a change in operations that could warrant the conclusion that it was no longer practicable to schedule signal maintainers in five-day positions. But the evidence in the record does not establish any relative changes in trouble call response times, or otherwise establish that it is no longer practicable to continue the historic scheduling.
Accordingly, the Board finds that the Carrier has not met its burden of rebutting the presumption in favor of five-day positions with Saturday and Sunday rest days, and the claim is sustained. The five-day positions that were changed to seven-day positions with alternate rest days shall be returned to their original five-day schedules.
By way of remedy, the Organization has demanded that affected employees be awarded monetary compensation in the form of overtime for all Saturdays and Sundays that they worked the new schedules. The Board does not find that any monetary compensation is due and owing to Claimants. Monetary compensation is designed to put Claimants in the position that they would have been in had there been no violation of the Agreement. The Agreement guarantees employees a work week of five days and forty hours, with two consecutive days off. As far as the Board can tell from the record before it, that is what Claimants received. There is no evidence that they would have been assigned to trouble calls or worked overtime every weekend had they been properly scheduled. Any monetary compensation for overtime is thus speculative only, which is not a proper basis for awarding such compensation.
AWARD
Claim sustained in accordance with the above.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 15th day of December 2021.
The Labor Member concurs with the Board’s decision on the core issue of this case, Carrier’s unilateral change of the work week without an operational necessity. The Board’s decision upholds the clear agreement language and precedent that the language of Rule 20, as other similar 40-hour work week rules, has a presumption of a Monday through Friday work week with Saturday and Sunday rest days. The Board applied proper analysis in finding that the lack of evidence provided by Carrier failed to overcome that presumption.
However, despite its analysis and finding that Carrier violated the Agreement, the Board failed to enforce the agreement with the remedy owed to the Claimant. Providing the proper damages when a violation occurs is necessary to maintaining the integrity of agreements; Referee Daugherty in Third Division Award No. 5893 summarized this fundamental and axiomatic principle by holding:
“…If violations go unpunished, there may be insufficient incentive to avoid repetitions thereof.”
The Board noted that “Monetary compensation is designed to put Claimants in the position that they would have been in had there been no violation of the Agreement,” The record made clear that the work the Claimant was improperly required to perform on Saturdays and Sundays would have been paid at the time and one-half rate if not for the violation. Despite the Organization’s arguments on the property and before the Board on this issue, the Board failed to provide a justified remedy and its analysis on this issue is contra to the agreement language as well as precedent on this issue. The Board was presented Third Division Award No. 37049 which provided guidance on both the core issue as well as precedent to award a proper remedy. The Board in that case held:
“As remedy for that proven violation, the Carrier is directed to compensate the Claimants for an additional one-half hour’s pay for each hour worked on Sundays on and after January 17, 1999 until the workweek assignment violations ceases. Just as in Award 35564, authority for the overtime “make whole” remedial damages for the Sundays covered by this claim is found in Third Division Awards 13738, 19947, 25968, 30662, 30987, 31453, 31590, 32107 and Public Law Board
No. 2206, Award 52.”
This same logic was applied and provided to this Board in Third Division Award Nos. 35564, 35805, 36055 and in Public Law Board No. 7656, Award No. 4, which involved this same Carrier.
Further support for the payment of overtime which this Board deemed as “speculative” is found in Third Division Award Nos. 13738 which was included with the Organization’s submission and argument before the Board.
The Board in Award No. 13738 held:
“The loss suffered by an employe as a result of a violation of a collective bargaining contract by an employer, it has been judicially held, is the amount the employe would have earned absent the contract violation. Where this amount is the overtime rate an arbitrary reduction by this Board is ultra vires.”
Not only did the Board fail to adhere to its own statement of placing the Claimant in a position that he would have been if not for the violation, it findings failed to address or give reasons for its disregard of the sound argument for the remedy accompanied by arbitral precedent supporting such remedy for this type of violation.
For these reasons and to the extent indicated, I respectfully dissent.
Brandon Elvey Labor Member