SPECIAL BOARD OF ADJUSTMENT N0. 605
PARTIES ) BROTHERHOOD OF RAILWAY SIGNALMEN
TO THE ) and
DISPUTE ) SOUTHERN PACIFIC TRANSPORTATION COMPANY
(WESTERN LINES)
QUESTION AT ISSUE
Case No. 1. "Was T. A. Fudge, Signal Maintainer adversely
affected under Sections 6 and 8 of the Washington Job Protection
Agreement (WJPA) when the Southern Pacific Transportation Company
failed and/or declined to compensate him for use of his personal
automobile for emergency calls on January 7, 8, 18, and 20, 1980,
in the amount of $36.80?"
Case No. 2. "Was C. R. Moon, Signal Maintainer adversely
affected under Sections 6 and 8 of the Washington Job Protection
Agreement (WJPA) when the Southern Pacific Transportation Company
failed and/or declined to compensate for the use of his personal
automobile for emergency calls on May 21, 24, 25 and 27, 1980 and
June 6, 8, 12 and 15, 1980, in the amount of $44.16?"
Case No. 3. "Was G. Y. Ochoa, Signal Maintainer adversely
affected when the Southern Pacific Transportation Company failed
and/or declined to compensate him for use of his personal
automobile for emergency service on May 2, 3, 4, 7, 10, 11, 14, 17
and 18, 1980 in the amount of $103.50?"
OPINION OF BOARD
Claimants are former signal employees of Pacific Electric Railway
Company ("Pacific Electric"). Pursuant to authority granted by the
Interstate Commerce Commission, Pacific Electric was merged into the Carrier
effective August 13, 1965. Beginning in 1965, the Carrier attempted to
merge and consolidate the Organization's employees with the employees
working on its Los Angeles Division represented by the Brotherhood of
Maintenance of Way Employees ("BMWE"). No joint agreement could be reached
in the early years, although the Carrier entered into separate collective
bargaining agreements with the Organization and the BMWE. The collective
bargaihing agreement between the Pacific Electric and the Organization
provided:
Rule 13(f). Calls: Hourly rated employes notified or called to
perform service outside of and not continuous with regular working
hours will be paid a minimum allowance of two (2) hours and forty
(40) minutes at the time and one-half time rate. All time held in
excess of two (2) hours and forty (40) minutes will be considered
and paid for as overtime hours, computed on the actual minute
basis. The time of employes so notified prior to release from
duty will begin at the time required to report and end when
released. The time of employes so called after released from duty
will begin at time called and end at the time they return to
designated point at home station.
Employes off duty will respond promptly when called. They will
provide the Signal Engineer with their home address.
Employes will be free to leave their homes after tour of duty and
will not be required to hold themselves in readiness for calls.
Rule 55. Private Automobiles: When employes are instructed and
are willing to use their private automobiles for company use they
will be paid an allowance of 5 cents per mile for four cylinder
cars and 7 cents per mile for cars with six or more cylinders.
While this agreement was in force between Pacific Electric and the
Organization, both parties interpreted the agreement as entitling employees
to payment of mileage expenses when traveling from home to their headquarters point in the event they were called for emergency work. In August
1978, a final agreement was reached consolidating the two labor organizations and an implementing agreement was adopted. Section 5 of the implementing agreement cancelled the collective bargaining agreement between
Pacific Electric and the Organization except for certain provisions not
relevant here. Among the benefits sought by the Organization in negotiating
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the implementing agreement, but not included in the final agreement, were
the following:
a. Mileage when called for overtime work
and:
(a) When called outside regular working hours, employes will be
allowed automobile mileage at the highest rate applicable to any
employe of the Southern Pacific Transportation Company, from the
employe's residence to the headquarters point and return to the
residence.
Claimants were called outside of their regularly assigned working hours
on various dates in January, May and June 1980 to perform emergency work.
Each Claimant presented a personal expense account in which he claimed
automobile mileage for the use of his personal vehicle in transporting him
from his home to his headquarters point. The claims were based on alleged
violations of Rules 6 (a) and 8 of the Washington Job Protection Agreement
and Rule 76 of the Carrier Collective Bargaining Agreement, which provide as
follows:
Section 6 (a). No employee of any of the carriers involved
in a particular coordination who is continued in service shall,
for a period not exceeding five years following the effective date
of such coordination, be placed, as a result of such coordination,
in a worse position with respect to compensation and rules
governing working conditions than he occupied at the time of such
coordination so long as he is unable in the normal exercise of his
seniority rights under existing agreements, rules and practices to
obtain a position producing compensation equal to or exceeding the
compensation of the position held by him at the time of the
particular coordination, except however, that if he fails to
exercise his seniority rights to secure another available
position, which does not require a change in residence, to which
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he is entitled under the working agreement and which carries a
rate of pay and compensation exceeding those of the position which
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he elects to retain, he shall thereafter be treated for the
purposes of this section as occupying the position which he elects
to decline.
Section 8. An employee affected by a particular coordination
shall not be deprived of benefits attaching to his previous
employment, such as free transportation, pensions, hospitalization, relief, etc., under the same conditions and so long as such
benefits continue to be accorded to other employees on his home
road, in active service or on furlough as the case may be, to the
extent that such benefits can be so maintained under present
authority of law or corporate action or through future authorization which may be obtained.
Rule 76. Private automobiles. When employes are requested
and are willing to use private automobiles for Company use, an
allowance shall be made at the established automobile mileage
allowance paid by the Company to its employes.
The parties agreed to have the Board consider this case on its merits
despite some question as to whether or not the claims were procedurally
barred. In light of that stipulation, the Board's decision specifically
does not reach issues related to the timeliness of the claims.
The Organization contends that the consolidation between Pacific
Electric and the Carrier is a "coordination" under the Washington Job
Protection Agreement. It maintains that the discontinuance of the mileage
payment in the words of the Washington Job Protection Agreement, "places
Claimants in a worse position with respect to compensation and rules
governing working conditions" and "deprives them of benefits attaching to
(their) previous employment" in violation of Rules 6 (a) and 8 of that
Agreement as well as Rule 76 of the Collective Bargaining Agreement. The
Organization asserts that a "tacit understanding" existed under Rule 55 of
the agreement with Pacific Electric that an employee who answered an
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emergency call would be paid a mileage allowance for using his personal
automobile to travel from his home to his headquarters point. The Organization maintains that since the language of Rule 55 is similar to the language
of Rule 76, the same "tacit understanding" should be in effect under the
collective bargaining agreement between the Carrier and the Organization.
Finally, the Organization argues that because an employee is considered on
duty from the moment he receives an emergency call, Claimants are, therefore, entitled to the payment for automobile mileage.
The Carrier maintains that no violation has, been committed and contends
that no provision of the collective bargaining agreement or the implementing
agreement and no past practice requires the payment of automobile mileage
for employees between their home and headquarters point.
The Carrier points out that the provision that would have entitled
employees who are called for emergency work to the payment of automobile
mileage was specifically rejected in the negotiation of the present
collective bargaining agreement. The Carrier argues that the Organization
should not be allowed to obtain through arbitration what it could not obtain
in negotiation.
In addition, the Carrier maintains that whatever practices regarding
automobile mileage that may have existed between the Organization and
Pacific Electric were cancelled by Section 5 of the implementing agreement.
The Carrier further maintains that Claimants have not suffered a loss of
earnings related to the implementing agreement.
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Finally, Carrier asserts that this entire question regarding the
payment of automobile mileage was resolved by Award No. 1 of Public Law
Board No. 2925 which involved the same issues, the same parties and Claimant
Fudge as representative for various former employes of Pacific Electric who
had entered Carrier's service. In that decision, the Board chaired by
Neutral Kasher held that the Organization's Washington Job Protection
Agreement claims should be heard by a Section 13 Committee. That Board
further denied Claimant Fudge's claim for payment of mileage on the grounds
that Section 5 cancelled Rule 55 and that no past practice had been
established or proven which entitled Fudge to payment in the absence of a
requirement to that effect in the collective bargaining agreement.
After considering the entire record, the Board finds that the instant
claims must be denied.
The decision rendered by Public Law Board No. 2925 controls the
situation before this Board and that decision is sound. Rule 55 of the
former agreement between the Organization and Pacific Electric was interpreted by both parties to entitle signal maintainers to receive payment for
their automobile mileage. This provision was cancelled by Section 5 of the
implementing agreement. Rule 76 of the collective bargaining agreement does
not entitle employees who work emergency calls to payment for their mileage.
It was never interpreted that way. The fact that the Organization sought
unsuccessfully to have a provision added to the agreement that would grant
that entitlement to employees under the agreement is evidence that Rule 76
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was not interpreted to mean that, and that no past practice had evolved
creating that entitlement.
With this foundation, the Board then finds that Claimants cannot be
found to be in a worse position because of the consolidation and that they
were not deprived of benefits attaching to their previous employment because
the right under which they claim did not and does not exist under the
collective bargaining agreement between the Organization and the Carrier.
AWARD
The answer to each of the questions posed is "no."
~c
Nicholas H. Zumas, utral Member
Date:
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