NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4768
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD NO. 23
Carrier File No. DMW8 880803
Organization File No. B-Y-364
STATEMENT OF CLAIM
The Agreement was violated when the Carrier failed
and refused to allow B&B Water service Foreman R. Barth
compensation for travel time and overtime incurred as a
result of attending welder training school at overland
Park, Kansas between March 6, 1988 and March 18, 1988.,
As a consequence of the violation, B&B Water Service
Foreman R. Barth shall be allowed 11.7 hours pay at his
straight time rate and 9.5 hours pay at his time and onehalf rate for travel time and overtime service,
respectively, incurred between March 6 and March 18,
1988.
F I N D I N G S
The Claimant, a Water Service Foreman, attended a two-week
welding training program at the Carrier s technical training center
. in Overland Park, Kansas. He traveled from and to his headquarters
point in Mandan, North Dakota prior to and following the program,
which was conducted on a Monday-to-Friday schedule.
He was reimbursed for travel and other expenses and was paid
on a basis of 40 hours a week for the two-week period. Claimant
submitted time claims for 6.4 hours and 5.3 hours, respectively,
for time in public transportation traveling to and from the
training center. In addition, he submitted a claim for 9.5 hours
overtime pay for time spent beyond eight hours on nine days while
at the training session.
Initially, the organization contends that the Claimant was
"directed" to attend the training program and did not volunteer to
do so. There is nothing in the record to dispute this contention.
Among its defenses, the Carrier relies on a 1984 internal
memorandum discussing the then proposed training center and
stating, among other conditions, that "[t]he students will be paid
on a straight 40-hour week basis with no additional payment allowed'
for travel time, overtime or weekends." The Carrier contended
that this "policy" had been followed for four years prior to the
initiation of this claim. The organization points out, however,
that it never agreed to the terms of this policy and that such lack
of agreement had been previously acknowledged by the Carrier.
In discussing this claim, the Board necessarily separates
review of its two aspects -- the pay for travel time and the
alleged "overtime" during the training.
As to the travel time pay, the organization cites Rule 35,
Travel Time, which reads in pertinent part as follows:
A. Employes not in camp cars and other than those
covered by Section G hereof [not applicable here] will be
allowed straight time for actual time waiting or
traveling as passengers by . . . public conveyance by the
direction of the Company, during or outside of regular
work period including travel on rest days or holidays,
either on or off an assigned territory.
In addition, the organization submitted on the property
unrebutted statements from a number of employees indicating they
had been paid travel time under identical circumstances at about
the same time as this claim.
In this as in the question of overtime during training, the
carrier argues the theory of "mutual benefit" to the Claimant and
the Carrier. While such "mutual benefit" may well be a reality,
there can be little question that in this instance the Claimant was
traveling at the "direction of the Company". There is no basis to'
find that Rule 35 (A) is inapplicable in these circumstances.
The remainder of the claim concerns pay for the time the
Claimant was participating in the training program, for which the
Carrier paid him 40 hours a week. The Claimant states that he
participated in the program for more than eight hours a day and
thus should be entitled to "overtime" for such additional hours.
Here the organization relies on Rule 29, Overtime, which reads in
pertinent part as follows:
A. Except as otherwise provided in this Agreement,
time worked preceding or following and continuous with a
regularly assigned eight (8) hour work period shall be
computed on actual minute basis and paid for at time and
one-half rate with double time computed on actual minute
basis after sixteen (16) continuous hours of work in any
twenty-four (24) hour period computed from starting time
of employe's regular shift.
However, Awards cited by the Carrier offer a general pattern
of interpretation that occurrences such as training programs can be
distinguished from the definition of "work" or "service" as
intended in Rule 29 or similar rules. The Claimant was paid the
compensation which he would otherwise have received in his regular
straight-time schedule. Since the classes were held, perhaps by
coincidence, on the Claimant's regularly scheduled days, there is
no issue here concerning "work" or "service" on rest days. The
Board is guided by Third Division Award No. 20323 (Sickles)
which
states:
In Award 10808 (Moore), it was noted that there are
exceptions to time consumed by an employee when directed
by the Carrier as being considered "work" or "service.
one of these exceptions was held to be where the
circumstance contains a mutuality of interest. The Award
concluded that, "Awards have held that classes on
operating rules and safety rules are such exceptions."
See also, Award 11048 (Dolnick), 15630 (McGovern), Fourth
Division Awards 2385 and 239 (Seidenberg), 7631 (Smith),
11567 (Sempliner) and Public Law Board No. 194, Awards 24
and 25.
The Board does not mean to suggest that the issue in
dispute is so clear of resolution that reasonable minds
might not differ in determining the appropriate
application of the Agreement to the facts presented in
this dispute. Nevertheless, numerous Awards rendered by
a number of Referees have consistently determined that
mandatory attendance at classes such as those in issue in
this dispute, do not constitute "work, time or service"
so as to require compensation under the various
Agreements. Because of the consistent holdings of prior
Referees, we are reluctant to overturn the multitude of
Awards.
The claim for 9.5 hours overtime pay is thus found without
rule support.
A W A R D
Claim sustained to the extent provided in the Findings. The
carrier is directed to place this Award in effect within 30 days of
the date of this Award.
L
HERBERT L. MARX, Jr, Chairman and Neutral Member
MARK JJ/SCHAPPAUGH, Employee Member
WENDELL A. BELL, Carrier Member
NEW YORK, NY
DATED: It-LA-91