PUBLIC LAW BOARD ?v0. 2766
AWARD NO. 1
CASE NO. 1
Parties s International
Brotherhood of
Electrical Workers
s
to the
8
and
s
Dispute , Missouri Pacific Railroad Company
Question
at Issue Under the August 1,1977, agreement, under what
conditions shall a communications
maintainer
receive time and one-half over and above the
monthly rate?
After conducting hearings on the record of thirty cases
and a review of all the evidence, the board finds the followings
(1) the parties herein are a carrier and employes within the meaning
of the Railway Labor Act,
as
amended- (2) the board is duly
constituted by agx'eement dated July 21, 19801
(3)
the board
has jurisdiction over the parties and the subject matters
and
(4)
the parties were given due notice of the hearings held.
BACKGROUND OF THE DISPUTE
Prior to August 1,1977, the class of employes involved
in this dispute were identified as telephone maintainers. They
were covered by the agreement dated June 1,1960, between System
Federation No. 2, Railway Employees Department, AFL-CIO (composed
of several shop crafts, including the IBEW) and the Missouri
P7&(
o-i
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Pacific Railroad Company. Rule 107 (c) of that agreement was
applicable to telephone maintainers. That rule reads in pertinent
part as followti
ELECTRICAL
WORKERS
CLASSIFICATION
OF WORKS RULE 107
(c) (Western and Southern Districts only.)
Telephone maintainers will be paid a monthly
rate to cover all services rendered except as hereinafter provided. They will be assigned one regular
rest day per week, Sunday if possible. Rules
applicable to the classification of electrician
. shall apply to service for monthly rate telephone
maintainers on their assigned rest day. Ordinary
maintenance or construction work not heretofore
required on Sunday will not )x required on the sixth
day of the work week, The straight time hourly rate
for such employes shall be determined by dividing
the monthly rate by 213 hour;. Further wage adjustments, so long as monthly rates remain in effect,
shall be made on the basis of 213 hours per month.
Except as specifically provided in this paragraph
(c), the rules applicable to monthly rated telephone
maintainers prior to September 1,1949, shall continue
without change.
Rule 107 (c) covered telephone maintainers for pay purposes,
including overtime pay provisions, for work performed on rest
days. It also clearly stated that ordinary construction or
maintenance work would not be required on the sixth day of the
work week. Under this rule, monthly paid telephone maintainers
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were required to respond to trouble calls any time during the
six day work week and the monthly rate of pay covered all such
calls.
In September 1970, the organization served carrier with a
Section 6 notice on behalf of telephone maintainers seeking their
own agreement. After several years of negotiations and with
the help of mediation, an agreement was reached. That agreement has an effective date of August 1,1977, and is entitled
Communication Agreement between the
Missouri Pacific Railroad Co.
and
International Brotherhood of Electrical Workers
The employes covered under this agreement are all communication
maintainers in the employ of the riissouri Pacific Railroad.
Rules of the August 1,1977, agreement pertinent to this
dispute are listed belows
RULE 3. MONTHLY RATED EMPLOYES
Communication t.:aintainers will be paid a
monthly rate to cover all services rendered except as hereinafter provided. They will be assigned
one regular rest day per week, Sunday, if possible.
Ordinary maintenance or construction not heretofore
required on Sunday will not be required on the sixth
day of the work week. The straight time hourly rate
shall be determined by dividing the monthly rate by
213 hours.
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Monthly rated communications maintainers will 1x -
paid time and one-half rate for ordinary maintenance
or construction work on the sixth day of their
work week and for all work performed on their
rest day.
Positions for monthly rated communications maintainers will have assigned territories. Monthly rated
communications maintainers will be paid at the time
and one-half rate in addition to their monthly rate
for ordinary maintenance or construction outside their
normally bulletined hours and for ail services
rendered off their assigned territories outside their
normally bulletined hours.
RULE 4. HOURS OF SERVICE AND WORK WEEK
Section 1. Hours of Service
(a) Eight hours of service shall
constitute a days work.
RULE 5. SHIFTS
(a) Where but one shift is employed unless
otherwise provided for, the starting time
will not be earlier than 7100 o'clock nor
later than 8sD0 o'clock, a.m. or p.m.
RULE 6. OVERTIME
All overtime continuous with regular
bulletined hours will be paid for at
rate of time and one-half until
relieved, except as may be provided in
rules hereinakter set out.
RULE 7. OVERTIME AND CALLS
(a) For continuous service after regular
working hours, employes will be paid
time and one-half on the actual minute
basia, with a minimum of ones (1)
hour.
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(0(0-i
jd) Employes called or required to report
for work and reporting will be allowed
a minimum of four (4) hours for two
hours and forty minutes (204011) or less
and will be required to do only such
work as called for or other emergency
work which may have developed after
they were called and cannot be performed
by the regular force in time to avoid
delays to train movement.
(g) Work in excess of forty (40) straight
time hours in any work week shall be
paid for at one and one-half times the
basic straight time rate except where
such work is performed by an employe
due to moving from one assignment to
another or where days off are being
accumulated under paragraph (g) of
Section 2 of Rule 4.
At the conclusion of the first meeting of this board, it
was clear that the dispute involved here encompassed a number
of elements that had to be handled separately.
Thirty individual claims alleging a violation of Rule 3
of the August 1,1977, agreement were presented. In the interest
of sound labor relations and with the aim of seeking a practical
approach to a complex problem, it was agreed that the board
would first interpret the meaning of Rule 3. It would then
review and decide each claim separately, in light of its interpretation of Rule 3.
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POSITION OF
THE PARTIES
The
organization contends that under the August 1,1977,
agreement, comffiunication maintainers are entitled to time and
one-half pay for all time worked outside their bulletined hours
and all time worked on the sixth day of the work week and on
their rest days, The organization supports this position by
arguing that the controlling agreement covers only communications
maintainers and that all terms of~the agreement apply to covered
employes.. It further contends that specific rules of the agreemerit--Rule 4, 1(a), Rule 5(a), Rule 6(a), and Rule 7(a),(d), and
(g)-- clearly support the argument that time and one-half will
be paid for all work performed beyond bulletined hours and for
all work performed beyond 40 hours in a week, All rules in the
agreement pertaining to pay apply to communications maintainers,
not just Rule 3,
Carrier, on the other hand, contends that communications
maintainers are monthly rated employes and that Rule 3 of the
August 1,1977, agreement very clearly specifies that communications
maintainers are paid a monthly rate for all services rendered.
It also specifies under what conditions communications maintainers
will be paid overtime. Carrier also argues that Rule 6(a) and
Rule 7(a),(d), and (g) do not apply, since Rule 3 was written
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specifically to cover overtime situations for monthly rated
employes. The other rules were placed in the agreement to
cover hourly paid employes when and if they were hired.
Carrier's position, briefly stated, is that communications
maintainers are paid overtime pay for work performed on the
rest day, for ordinary maintenance and construction work
performed on the sixth day, ordinary maintenance and
construction work performed outside normally bulletined hours,
and for all work performed off assigned territory outside
normally bulletined hours. All other work required of
communications maintainers is covered under the monthly rate.
Carrier claims that communications maintainers are paid
the monthly rate to assure that they will be available to
respond to trouble calls after hours and on the sixth
day. Rule
3
makes no allowance for overtime pay for such
trouble calls. They are covered under the montly rate.
OPINION OF THE BOARD
It is the opinion of this board that when the August 1,
1977, agreement is compared to the previous shop craft
agreement, it is clear that the latter agreement expanded
the rights of communications maintainers. It did not,
however, go so far as to require overtime pay for all
trouble calls outside of bulletined hours and on the sixth
day, as the organization maintains in these proceedings.
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. The interpretation given by carrier to Rule 3 is the
Correct
one, This language is very precise and specific. It is clearly
understood in the railroad industry and has been interpreted
in numerous awards both on and off this property, Rule 3 states
that communications maintainers will be paid a monthly rate to
cover all services rendered. If that phrase stood alone in the
agreement, one could reasonably conclude that the parties had
agreed that for a monthly rate of pay, carrier could call on
the employe to perform a service at any time of the day or night
the work at
or on any day of the week and be responsible for` no extra pay.
The parties to this agreement, however, did not intend to have
such an unreasonable arrangement, so they wrote into the rule
certain exceptions.
They specified one rest day per week. They agreed that
ordinary maintenance or construction work would not be required
on the sixth day. They indicated that communications maintainers
would be paid time and
one-half for
all work on their rest day
and for all ordinary maintenance or construction work performed
after bulletined hours and on the sixth day. They specified
that maintainers would be assigned a territory and would be paid
time and one-half for all services rendered outside of normally
bulletined hours off their territory. They did not specify any
other conditions under which a communications maintainer would
be paid time and one-half.
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It is a generally accepted principal in labor relations that
the parties to an agreement are fully aware of what they have
agreed to. If they go to the trouble to list specifics in a
contract clause, it can be concluded that all possibilities were
considered and only those agreed to were listed.
It appears to this board that that is precisely what tool:
place in the negotiations leading up to the August 1,1977, agreement. The organization sought expanded coverage of overtime for
communications maintainers over what it had under Rule 107(c)
of the shop craft agreement. It was successful in that attempt.
It clarified the rule in regard to overtime pay for ordinary
maintenance and construction on the sixth day. It was successful
in adding overtime pay for ordinary maintenance and construction
outside bulletined hours and for all work performed off territory
outside of normally bulletined hours.
The organization made significant gains in this round of
bargaining. It cannot be concluded, however, from the wording
of Rule 3 or from the record of these proceedings that the parties
agreed to or intended to agree to: pay monthly rated employes
overtime for all time worked outside of normally bulletined hours
or on the sixth day. lie see no basis on which to conclude that
legitimate trouble calls are not covered under the monthly rate.
a--7 to
h-
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While the board agrees with the carrier's interpretation
that Rule 3 does not require that maintainers be paid for
trouble calls outside of the bulletined hours on the first six
days of the work week, this board does not agree that carrier
can require work after the ,regular bulletined hours purely on
whim. Both hides ?gave presented awards to support their respective
positions in this case. A careful review of those awards re
veals
that in each case, the referee noted that some element of
emergency or an extraordinary, unusual situation must exist in
order to justify calling a monthly paid employe to perform work
outside his bulletined hours and on the sixth day.
In Second Division Award 4481. submitted by carrier, Referee
Seidenberg stated, ,the division finds it a more logical and
reasonable construction to hold that the Rule means that regular
employe paid on a monthly basis are required in order to earn
that monthly rate, among other things, to stand by and be available
to perform emergency and extraordinary work on the sixth day of
the work week,"
In Second Division Award 7039, Referee R.M. O'Brien also
spoke to the need for work to be of an urgent or unusual nature
in order to require a monthly paid employe to work on the sixth
day. This board has adopted such a position and will apply it as
we review and decide
each ease before use,
_il_
This dispute settles on the issue of whether it is was
necessary to call a maintainer in each of the situations cited,
While the organization takes the position that the monthly rate
does not cover payment for overtime work, but only for holidays
and the standby day, it also argues in the majority of the cases
before this board that the work performed by claimants was in
the nature of ordinary maintenance,and no real emergency situation
was present.
The issue of what does or does not constitute ordinary
maintenance and whether it is consistent with what carrier
characterizes as a trouble call is not the paramount issue before
this board, but it must be discussed in some detail in order to
settle this dispute. Neither of the two extreme positions that -
emerge from this record (that a total emergency must exist to justify
a call or that carrier can call a communications maintainer on
1
the first six days of the work week, whether the call is necessary
or not)
is valid.
It goes without saying that the rule of reason
must be applied when either side exercises its rights in labormanagement relations. Farrier cannot act in an arbitrary or
capricious manner in calling communications maintainers. There
must be some reasonable justification for such calls. The practice
in the industry, long-standing relationships, and common sense
will usually dictate what constitutes "reasonable" action,
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The organization argues that Rules G(a) and 7(a),(d), and
(g) apply to monthly rated employes and that their pay should
be figured accordingly, This board cannot agree. In handling
this case on the property and in its presentation before this
board, carrier stated that the organization requested that the
terms of the shop craft agreement pertaining to hourly employes
be carried forward and included in the August 1,1977, agreement,
in the event that carrier put on apprentices or construction
crews who would be paid on an hourly basis. That statement by
carrier has gone unrefuted throughout these proceedings.
-This board is of the opinion that the parties to this agreement did not agree, by words or inference, to pay monthly rated
communications maintainers a rate of pay considerably larger than
comparable hourly rated people would receive and then also pay
them time and one-half for all time worked, for whatever reason,
outside of normally bulletined hours or on the standby day. If
the parties had agreed to such an arrangement, it would have
been so unusual that they could have and should have clearly
so stated in the agreement. Since the agreement contains no
clear statement to this effect, it can only be concluded that
the parties intended to apply the term monthly rate for all
services rendered in the August 1,1977, agreement in the same
manner that it had been applied for many years in the shop craft
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agreement. Where they agreed to change its application, clear
language was written into the agreement.
FINDINGS
As to the specific facts of Case No. 1. Maintainer Brown was
called in on Saturday, March 25,1978, his standby day, to determine
why the base radio at North Little Rock could not be used. He
found the trouble and disconnected a console. This allowed all
other consoles on the network to perform properly. The faulty
console was kept out of service over the weekend and was repaired
by claimant during his normal working hours on Monday.
Carrier argues that this was a trouble call and, as such,
was contemplated under the monthly rate. The organization argues
that the work performed by claimant was ordinary maintenance and,
therefore, under Rule 3, he should be paid time and one-half for
the time spent.
It is the opinion of this board that the monthly rate covers
such calls and that claimant is not entitled to additional
compensation fn this instance.
AWARD
The claim is denied per opinion of the board.
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D. G. Davls, ·mploye
Member
W.G. Armstrong, Carri Member
R. . D nnis, Chai
man
and Neutral Member
fasued fn New York, N.Y. December 9,1980
File No. 360-3073