Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45355 Docket No. SG-47394
25-3-NRAB-00003-220450
The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when award was rendered.
(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (
(Union Pacific Railroad Company STATEMENT OF CLAIM:
“Continuous claim on behalf of V. Victor, O. Vital, and D. River, Jr., for
compensation of 2 hours at their respective straight-time rates of pay and 2 hours at their respective overtime rates of pay for each day worked at the altered start time and continuing until the Claimant's start time is returned to 7:00 a.m., account Carrier violated the current Signalmen’s Agreement, particularly Rules 7, 10, and 65, beginning on June 22, 2021, Carrier unilaterally changed the Claimant's start time from 7:00 a.m. to 5:00 [a]p.m. for the sole purpose of avoiding overtime, resulting in a loss of wages to the Claimant's. Carrier’s File No. 1760326, General Chairman’s File No. VGCS-7-10-187, BRS File Case No. 5394, NMB Code No. 300 - Contract Rules: Assignments/Bulletins.”
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.
Form 1 Award No. 45355
Page 2 Docket No. SG-47394
25-3-NRAB-00003-220450
At the time this dispute arose, the Claimants were Signalmen on Signal Gang 4581 working at Englewood Yard Houston. The Organization asserts that commencing June 22, 2021, the Carrier changed the Claimants’ start time from 7:00 AM to 5:00 AM for the sole purpose of avoiding overtime and the Organization therefore seeks compensation for the Claimants at the overtime rate for work completed outside their normal working hours.
In pertinent part, Rule 7 provides:
“RULE 7 – SHIFTS
* * *
“The starting time of employees will not be changed without first giving the employees affected seventy-two (72) hours notice. Starting times will not be temporarily changed for the purpose of avoiding overtime.”
At the time this dispute arose, a large-scale project was taking place at the Englewood Yard. The Carrier asserts that due to the nature of the project, curfews and work windows had to be established dictating when the signal gangs could perform their work.
According to the Carrier’s Director M. Choate, “[t]he gangs were given the 72 hours notice ...” which is corroborated by Carrier Manager M. Hamaker (“... they were given 72 hours notice that their time was going to change ....” Carrier Exhibits C2 at 5, 6.
The Organization does not appear to dispute that the 72-hour notice requirement was met. The Organization focuses upon the assertion that the change was for the purposes of avoiding overtime in violation of Rule 7.
The burden is on the Organization to demonstrate a violation of the Agreement. Third Division Award 35457 (“This is a contract dispute. The burden is therefore on the Organization to demonstrate a violation of the Agreement.”).
That burden has not been met.
According to Carrier Director Choate (Carrier Exhibit C2 at 5):
Form 1 Award No. 45355
Page 3 Docket No. SG-47394
25-3-NRAB-00003-220450
“The gangs start times were change because of operational need and service requirements. The operating dept at the yard set the time that they would take certain areas of the yard out of service for us every day and that was determined to be from 6 am to 3 pm ... The change had nothing to do with avoiding overtime”
According to Carrier Manager Hamaker (Carrier Exhibit C2 at 6):
“The start time change was due to an operational need by the carrier. The operating department asked that we work from 6 to 3 as to have the least impact on their operation ”
In a similar dispute, the Board looked to whether evidence of “. a bona fide need
for a starting time change exists and that it is not solely an attempt to avoid overtime ...
a legitimate basis for changing the start time of the signal crew.” Third Division Award 40316.
Given the extent of the project at the Englewood Yard and the operational need to reschedule the signal gangs to meet that need, the Organization’s burden to show that the Claimants’ start time was “temporarily changed for the purpose of avoiding overtime” within the meaning of Rule 7 has not been met.
Claim denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 19th day of December 2024.
The language of Rule 7 requires proper analysis of probative evidence in determining when a violation has occurred; in this case, the Majority’s quick judgement and failure to uphold the language as written give cause for dissent.
This is not a case of first impression and there are varying decisions made by previous Boards concerning the language of Rule 7. Rule 7 provides that start times may be changed with required notice; more pertinent to this case is that Rule 7 prohibits the temporary change of start times to avoid overtime payments. Based on this language, the Board’s analysis must factor in what was the causation and result of the start time change. Was there a bona fide need and what was gained by the change. This logic was noted in the Majority’s reference to Third Division Award No. 40316.
Carrier’s alleged basis for the change was based on statements from its Officials responsible for the change claiming an “operational need” to perform work in the window of 6:00 a.m. to 3:00
p.m. during the day. The record established that the Claimants’ advertised hours were 7:00 a.m. to 5:30 p.m. With their regular advertised hours, the Claimants could have completed the work in the designated window of 6:00 a.m. to 3:00 p.m., the only difference created in the change in start time was that the hours before 7:00 a.m. were now paid at the straight-time rate of pay rather than the overtime rate of pay. Moreover, evidence was attached to the initial claim in this record which demonstrated that there was work being done on an overtime basis which was halted after four days. An email was provided which established Carrier’s instruction was that there would be no more overtime. Third Division Award No. 37975 (“Other indicia of motivation might also be compelling – a recent ban on overtime; a passing remark by a Carrier official.”). This is the exact situation to which the prohibition of Rule 7 applies, this was a change to avoid overtime payment.
Carrier did not provide any probative evidence to show a bona fide basis for the time change, instead it simply says, “operational need”. A proper example of analysis in a similar case is provided in Thid Division Award No. 22900 which held:
“The Question for decision by the Board is whether the change was made for the purpose of avoiding overtime. It is apparent from the record that the signal gang had to work one hour each day after the rail gang completed their work. If the change in hours had not been made the signal gang would have necessarily been paid one hour of overtime each day. The change in hours avoided that payment. Carrier has attributed the change to a possible conflict with the Hours of Service law. However that conflict is only problematical and the avoidance of overtime is the reality.”
The Majority found Carrier’s unsubstantiated assertion of “operational need” along with the idea that this was a large project to be a bona fide need. Such shallow analysis and low standards effectively render Rule 7, nullified and without meaning. If Carrier schedules a big project, under this Award’s logic, it can circumvent and ignore bargained provisions unilaterally. Boards have long recognized that provision are bargained for a reason and have meaning; decisions such as the Majority’s in this case serve to erode the foundation of the bargained provisions and counter forces to the purpose for which the dispute resolution machinery was created.
Carrier’s controls its operations and held to the bargained provisions, the concept that a large project grants Carrier an exception from providing the employees a bargained benefit ignores the entire concept of the free enterprise system in which Carrier functions. As noted in Third Division Award No. 17760:
“This logic seems to ignore the fact that in the present free enterprise system it is the Carrier that is expected to bear the risk of loss just as it is expected to reap the benefits of profit.
We can no more require the employe to share the burden of loss with the Carrier, in the absence of a contractual provision, than we can require the Carrier to share the profits with the employes, in the absence of contractual provisions.
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The Carrier relief from his extra expense is at the bargaining table not before this Board.”
In this case, there was an extra cost in the form of overtime for Carrier to pay during its business in compliance with the agreement it has with the Union. The Majority’s decision passes that burden onto the employees and nullifies their bargained benefit, providing relief through arbitration which is to only be gained through negotiation. As such, this Award lacks a foundation based in agreement language or appellate review and should not serve as a precedent in future claims involving similar disputes.
Respectfully submitted,
______________________
Brandon Elvey Labor Member