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 NATIONAL RAILR04D PASSENGER CORPORATION
 * CASE NO. 1
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 * AWARD NO. 1
 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
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Public Law Board No. 4549 was established pursuant to the provisions of Section 3, Second (Public Law 69-456) of the Railway Labor Act and the applicable rules of the National Mediation Board.

The parties, the National Railroad Passenger Corporation (hereinafter the "Carrier" or "Amtrak") and the Brotherhood of

Maintenance of Way Employes (hereinafter the "Organization" ox the "BM W E"), are duly constituted carrier and labor organization representatives as those terms are defined in Sections 1 and 3 of t4le Railway Labor Act.

After hearing and upon the record, this Board finds that it haft jurisdiction to resolve the following issue, which was joined in eight (8) individual cases which the Carrier withdrew from the Third Division of the National Railroad Adjustment Boards





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A,3W=ound Facts . f' i~

There are no disputed facts regarding the grqanizatiopts al_;;5 that the Carrier improperly bypassed certain employees, between the dates of September 15 and December 2, 1984, who were antit1451 to be called for overtime.

Those facts were established, apparently, on the, property; tend the claims were only progressed to arbitration concerning the question of the appropriate remedy. Those claims and several other claims were submitted to the Third Division of the National Railroad Adjustment Board (hereinafter the "NRAB"), where two (2) of those claims resulted in Award Nos. 26508 and 26690 authored by Referee Robert W. McAllister. In sustaining the organization's position, Referee NcAllister found that payment of the claims at the "time and one half rate [was] appropriate".

Thereafter, the Carrier, exercising its right under Section 3, Second of the Railway Labor Act withdraw the remaining claims (NEC-BMWE-SD1124, 1140, 1141, 1142, 1143, 1175, 1177 & 1187) from the Third Division. These claims had been at the Division for more than one year, and the Carrier sought the establishment of a Public Law Board.

After resolving certain procedural disputes, the parties agreed to the establishment of this Board for the purpose of rendering a single decision which would be applicable to the eight (8) dockets which had been withdrawn from the Third Division.

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Position Q the qrrtanization k ~1' :' ;'
      Simply stated, the Organization contends that in ~fttut y .f"

i. where the carrier has improperly assigned overtime work to Junes employees, the senior aggrieved employees are entitled to receive t4s, rate they would have received had they been allowed to pariorm'th,* -, work. .

The organization argues that this position is supported by the vast majority of past awards of the Third Division of the NRAB. In support of this argument the organization cites approximately seventy-five specific awards of the NRAB. The Organization submits that the numerous awards it has cited represent "but a sampling of the leuion of awards rendered by the Third Division supporting our position".

The Organization also contends that its position is supported by awards "both past and present relating directly to this Carrier". The organization points out that the Pennsylvania Railroad was the predecessor of Amtrak, and that the Amtrak Scope and Work Classifications Rules as well as Amtrak's Rule 44 (Overtime) were copied almost verbatim from the Pennsylvania Railroad Company agreement effective December 16, 1945. The organization then points to Decision No. 433 (Docket No. 563) which was issued under the Pennsylvania Railroad (Pennsylvania-Reading Seashore Lines) agreement with the BMWE, in which the parties agreed to pay a claimant more than the straight time rate, in a circumstance, which the

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Organization contends, is analogous to the instant oases., , ';n , :` , i ,r, .The organization submits that a number of Third D4IvWQp',I~

 awards, including Award Nos. 26508 and 26690, JAvqlVi.nq th"4A.'1.'.:.:.
 parties, sustained the organization's position. The Or gani;atign^
 contends that the rationales of Referee McAllister (Award N4s. 361!0;
 and 26690), Referee Blackwell (Award No. 19947, BRS and the Trustees
 of the Penn Central) and Referee Sickles (Award No. 21767, BRS and
 the Trustees of the Penn Central) clearly and unambiguously establish
 that claims, such as those presented to this Board, are to be paid
 for at the premium rate. The Organization submits that the position
 the Carrier has taken in the instant case was carefully considered in
 Third Division Award No. 19947 (Blackwell) and was rejected.

The Organization submits that the awards sustaining its position are better reasoned, and that this Board should conclude that the awards relied upon by the Carrier were rendered in error.

The Organization argues that the awards relied upon by the Carrier, which have sustained the Carrier's position regarding the payment of straight time to employees who have been bypassed for overtime assignments on this property, have incorrectly concluded that there was a "practice and acquiescence by the organization" which permitted the carrier to pay only the straight time rate.

In further contradiction of the Carrier's position, the Organization submits that the awards relied upon by the Carrier are not representative of the vast majority of past awards of the Third

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Division which generally address this issue.

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      The Organisation states that it wholeheartedly agream with the ,

Carrier that the principle of should be applied ip.th,,
 ~: instant case. The organization submits that precedent manO", sustaining the instant claims consistent with its position.

The organization concedes that in the past claims for overtime have been settled on the property by the payment of straight time. However, the Organization submits that these "settlements" are of no precedential value. Additionally, the organization contends that it would be inappropriate for this Board to consider such settlements as binding upon the Organization, since to do so would adversely affect good labor management relations and result in the parties inability to settle future grievances.

Finally, .the organization contends that the entire fabric of the collective bargaining agreement recognizes that members of the BMWE craft or class receive premium rates in a number of circumstances where they have not performed work (i.e. certain vacation entitlements).

In conclusion, the organization requests that the Board not find that the "history" on this property or any "past practice" has been established wherein the organization has acquiesced to the Carrier's position regarding payment of the straight time rate. The

Organization asks the Board to reject the awards of Third Division
 referees or Public Law Board neutrals who have, in the Organization's
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Therefore, the Organization submits that the appxpp: whole remedy in the instant case requires the payment of the pint;;'.


opinion, erroneously concluded that rush a history 9Atiit~ such a past practice was established.

 rats.

 Position of the Carrier

The Carrier contends that under the principle of stare do2j&J& the issue before the Board has already been decided on this property between those same parties: and that six (6) different neutrals, rendering eleven (11) awards, have agreed with the Carrier's position that the straight time or pro rata rats for loot overtime opportunities is the appropriate measure of damages.

The Carrier has referenced the awards o! Neutrals Zumas (PLB 3932, Award 14), Gold (Third Division, Award 26235), Roukis (Third Division, Award 26456), Bonn (Third Division, Award 26534), Itarx (Third Division, Awards 27088 & 27089) and Dennis (Third Division, Awards 27147 through 27150).


The Carrier submits that these awards ware all based upon review of the same practice, rule structure, award support and documentation as era the cases pending before this Board.


The Carrier cites from Referee Gold's decision

26235) in which it was held ". . . Carrier's position persuasive. By custom, history, and practice, overtime


(Award No.

is the sore

has not bean

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                                                            paid in this instance E or time not worked." The Carrier &1*9
                                                            cites
                                                            i _, specific language from the award of Referee Bonn (Award No. 265,3A)

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the effect that "assignment of overtime work under this Agra"4M
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this property is payment at the pro rata rata". ,rye: ' ,' -
Attar reviewing the awards of Referee Marx (Award and 27089), which also sustained the Carrier's position, tha Carrier '.argues that the awards of Referee McAllister (hward~Nos. 26508 and
26690) era "clearly erroneous": as those awards ignored the issue of "prior claim handling practice and other awards on this property under this agreement on the issue". ,
The Carrier points out that awards issued subsequent to Referee McAllister's decisions have not supported his views. Therefore, the Carrier submits that Award Nos. 26508 and 26690 are "palpably erroneous and have no precedential value given the tact pattern and award support on this property on this issue".
The carrier submits that the issue of the proper payment to BMWE employees bypassed for overtime opportunities was "finally" resolved on this property by the award o! Referee Bonn (Award No. 2653a), and that there is absolutely no purpose for the Organization to continually ralitigate the question.
In conclusion, the Carrier submits that the Claimants have been properly compensated for the lost overtime opportunities claimed: and the Carrier requests that the Board sustain its position.
PLB No. 454p
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:aSi~Findings and Opinion of the Board '
This Board has carefully reviewed all of the lead awards ~it,kG ' .
have been cited to us for our consideration, where full tsxt~ oopi~ of those awards have been made available to the Board.
;`; ; '
of those awards have been made available to the Board. ' ~~'.; r
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      of particular historical interest to this Board
      is
      Award No. '

19947 of Referee Blackwell, an award cited by the organization in support of its position. We find this award to be significant, not because of the fact that it sustained the argument that the premium rate was the appropriate compensation for a missed overtime opportunity [although we should note that it was an award that did not involve the organization, but rather concerned a claim by the Brotherhood of Railroad Signalmen], but because this award summarizes in clear and understandable terms the historical conflict between the "straight time compensation" rationale (Award No. 4616, Referee Carmody) and the "punitive/premium time compensation" rationale (Award No. 13738, Referee Dorsey).

Award No. 19947 demonstrates the long-standing philosophical dispute between the parties and Section 3 neutrals regarding the appropriate measure of compensation for missed overtime opportunities. Referee Blackwell's conclusion bears repeating here:


"These contentions [the Carrier's position] are not wholly without merit and carrier's presentation in general is an impressive one. Also, we frankly acknowledge that there is a credible rationale to support each line of conflicting authorities. We are concerned, though, that the straight time authorities
HL8 No. 4319
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ars characterized by an undue absorption in the
historical purpose o! overtime, as well as a strained'
search of the contract itself to lied specific
guidelines on the measure o! damages. Overlies rate*
evolved both from public lawn and negotiation at the
bargaining table, but we fail to ass in this history
any express or implied prohibition against taking the'
loss of overtime into account, along with the loos of
straight time, when a Carrier's violation of an
employs's contractual rights to work is under
appraisal. Also, we know that many things ors loft
unsaid in a collectively bargained agreement and that
the measure of damages for a contract violation is
one of the most common among them. On balance,
therefore, we are skeptical about the rationale of
the straight time authorities for we believe it may
contain underlying defects which are absent from the
overtime rationale. Accordingly, we shall adhere to
the ruling laid down in Award 13738 and sustain the
claim."

11o reasonable parson can dispute that Referee Blackwell's award is "wall-reasoned". He concluded that he was better prepared to accept the rationale of Referee Dorsey in Award No. 13738 and that he was "on balance" not prepared to accept the reasoning in awards that followed the straight time compensation rationale; for, he believed, the straight time compensation rationale "may" contain underlying defects which are absent from the overtime rationale.

Referee Blackwell chose his words carefully. Ha was "skeptical" and he found that the straight time rationale "may" contain certain decisional defects. Hs did not conclude that any awards which adopted the straight time compensation rationale wars "palpably erroneous".


The "palpably erroneous" standard has bean the one used by
V.IB No. 4.349 .i ",·. .
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neutrals functioning under Section 3 of the Railway Labor Act,
wtta
'~; find reason to reverse a decision or a line of decisions that age directly on point with the cases they are ponside;ing.
T4is
undefined standard has contributed significantly to the prqblalts faced by carriers and labor organizations who find themesqve0 continuously litigating and relitigating issues that have been previously resolved on their respective properties.

In this Board's experience we cannot recall considering another case where the "line of precedent" on the property has been so well-established as the result of numerous, recent arbitration awards.

Six (6) different neutrals in the last four to five years have rendered thirteen (13) awards involving what are essentially the identical facts, issues and arguments. The present score is the Carrier 5 (neutrals) and 11 (awards) and the Organization 1 (neutral) and 2 (awards).

While this Board is not persuaded that the rationale of the Carrier is superior to the rationale argued by the Organization, we are persuaded that this dispute, on this property, has reached the point where further litigation serves no purpose. In our opinion, this dispute should have ended with the decision by Referee Marx (Award No. 27088). Referee Marx considered the two (2) McAllister

awards that sustained the
organization's position
. He also
recognized that
innumerable awards
have been issued in favor of each
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of the conflicting theories of compensatio4. He qbq5W!~d
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counting the number of awards or reviewing the argument4t in
favor
of

either position would be to no avail, except to highlight
one
al~Yt~ ·_ ,' conclusion; that being that "agreement language does not c144rly.aB,e,~·, unambiguously specify which position is correct". Raters*
Marie; thqa
concluded, after reviewing the history of claim handling on the property and the awards involving these same parties and this same issue, that payment of straight time "is the more consistent result".

While this Board is not persuaded that there is an established "binding past practice on this property" or that the organization's settlement of some or many claims for missed overtime opportunities at the straight time rate may be properly considered as the Organization's "acquiescence" to straight time being the proper remedy, nevertheless we must agree with arbitrator Marx that an award of straight time is the "more consistent result" on this property.

Referee McAllister was the only neutral on this property who found reason to sustain two claims at the premium rate. He relied on a rationale (authored by Referees Dorsey and Blackwell) that has some substantial merit: contrarywise the rationales of Referees Carmody, Zumas, Gold, Bonn and Marx also have substantial merit. None of these awards, in this Board's opinion, can be properly characterized as "palpably erroneous". Unfortunately, some of these awards conflict with others on this property.

      As noted above, this Board is going to sustain the carrier's

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position, since in our opinion the Carrier's position has
sons Wit,
and since the Carrier's arguments have been nustAia*4. xqro consistently by more neutrals on this property.
This Board concludes that on this property the ,.
Carrier is only obligated to pay straight time
compensation to BM WE employees who are bypassed
improperly and miss overtime opportunities. ,

This Award was signed this 14th day of July 1988 in Bryn Mawr, Pennsylvania.

L. C. 8riczaK - W. E. LaRue
Carrier Member organization Member
Richard R. Kasher
Chairman and Neutral Member