PUBLIC LAW BOARD NO. 5410
PARTIES TO THE DISPUTE:
United Transportation Union
AWARD NO. 74
-and- CASE NO. 74
Burlington
Northern Santa
Fe Railroad
STATEMENT Of CLAIM:
Claims of Conductor G.F. Watkins, Kansas City, Missouri, claiming one day at freight rate of
pay, April 9 and 19, 1999, "account required to begin a new day."
FINDINGS:
This Public Law Board No. 5410 finds that the parties herein are Carrier and Employee, within the
meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction.
Kansas City is the home terminal for several unassigned freight pools, including two pools working
south from Kansas City on former Frisco trackage. One of these former Frisco pools handles trains destined for
Springfield, Missouri, in unassigned interdivisional freight service from Kansas City through
Fort
Scott. Kansas
to Springfield. The other former Frisco pool handles trains destined to Tulsa, Oklahoma, in unassigned "short
pool" service from Kansas City to Fort Scott, where other pool crews at that point assume operation of those
trains for further movement to Tulsa.
The Claims are for April 9, 1999 and April 19, 1999. The Claim for April 9, 1999 is not the coned date.
The Carrier set forth facts for the date of April 8, 1999 where the Claimant Conductor 0,17, Watkins was called to
"Dogcatch more than one trait". After working one trip out of the initial terminal and returning the Claimant
was requited to make a second trip. Thus second trip commenced after he had been on duty for 8 hours,
Both parties sot forth facts as to the claim for April 19, 1999. The Organization states that on April 19,
1999, Conductor Watkins was called from his first-out position in the Fort Scott "short pool" for unassigned
freight service, on duty at 1:45 p.m. Both parties agree that he was not called for "short tun around service" and
we find that it is likely that he was called to "dogcatch more than one train" or equivalent words.
2
Conductor Watkins was transported by highway to Hillsdale, Kansas at Mile Post 37, 31 miles outside of
switching limits at Kansas City, where he took charge of outlawed northbound train PAMBAM, operating it back
into Kansas City. That trip consumed 7 hours 40 minutes. At 9:25 p.m., Conductor Watkins was transported to
Mile Post 11, 5 miles outside of Kansas City switching limits, where he took charge of outlawed northbound
train BIRKCK, operating that train back into Kansas City as well. That second trip consumed 5 hours 5 minutes.
The Claimant was on duty a total of 12 hours 45 minutes. For this service. Claimant submitted a claim for two
separate trips, each consisting of a basic day with no overtime. His claim was rejected, and he was paid a basic
day's pay, plus 4 hours 45 minutes overtime, with all time and miles of the two trips paid on a continuous
timelmiles basis. The claims were rejected on the basis that the class of service the Claimant was called for was
that of Hours of Service (HOS) Relief, a class of service that is not covered by Article 30(H) the Short
Turnaround Rule, and that the Claimant was properly paid for the days. The Organization disagreed and the
matter was properly progressed to this Board.
The Organization contends that the Carrier has no authority under any existing agreement to call
unassigned freight crews for multiple trips out of a terminal, unless such crews are called for short turnaround
service under the provisions of Article 30, Section H. Thus, according to the Organization. the Claimant had to
be called on either a single trip basis with no mileage or time restrictions, or on a multiple trip basis in "short
turnaround service" subject to the time and mileage restrictions of such service. If the term "dogcatch multiple
trips" is synonymous with short turnaround service, then the Claimant's first trip on April 19, 1999 was in excess
of the 25-nine restriction for any single trip in such service, and the Claimant is entitled to a basic day's pay for
exceeding that restriction. If "dogcatch multiple trips" does not constitute short turnaround service under Article
30, Section H, then the Claimant was improperly required to begin a new day under Article 30, Section I,. when
he departed the terminal on the second trip to Mile Post 11.
The Carrier contends that the Short Turnaround Rule does not apply to this case. It contends that the
Claimant was performing HOS Relief Service. a distinct type of service, and the proper compensation, under the
read service roles, is continuous time, actual miles or a basic minimum day. It contends that Mr. Watkins was
properly paid. The Carrier sets forth awards from other properties which the Carrier states supports its position.
~L$
ND. SWID
Awp
ND--14
3
The Carrier contends that it is well settled that the Short
Turn
Rule is a "call rule' not a "pay rule". ft contends
that the Fort Scott
ID
Service Agreement and Article
2(c) of
the Schedule Agreement are controlling. The
Carrier contends that the Organisation has not met its burden
of
proof.
Article 30, Sections
H
and
I of
the Schedule Agreement state:
Section H-Freight Service: Short Turnaround; Side or Lapback Trips: Short Trips To Or From A Terminal
Or An Intermediate Point
(I)(a) Pool crews may be called ro make shon turnarounds with the
understanding that
more than one turnaround trip
may be started out of the same terminal and paid actual miles, with the minimum of 100 miles for a day. provided: (1)
that the truleage of all the trips does not exceed 100 talks; (2) that the distance run from the terminal to the turning
point does not exceed 25 miles: and (3) that the crew scull riot be required to begin work on a succeeding trip ore of
the initial tennina) after having been on duty 8 consecutive hours, except as a new day subject to the first-in/first-out
role or practice.
Note: The above paragraph has no appliation to "long ttmarounds" for which a pool crew is
called on a single-trip basis.
(h) The following turnaround nips are permitted and are exceptions to the provisiom of Section I of this Article, and to
the other provisions of this Paragraph (1):
Crystal City-St. Louis )
Neodesha--Cherryvale )
Paris-Hugo )
Ft. Scat-Aroadia )
Thomas Yard--Dom )
FL
Smith--Jenson--Unlimited
)
Madill, Ardmore. Durant Runs:
In the question as to pay of pool crews assigned to what is known as the Madill, Ardmore and Duraot run:
It is proper to extend the run of this crew to Diuant and return, paying for the 2 doubles, one way,
Madil: to Ardmore and return: and the other Madill to Durum and return, actual miles, or hour:, in
case the
loner was
earned.
It is understood that this is cot an aueapt to begin the practice of running pool freight crews
through their established icrntinals. When a freight train gets to the tad of its run, whch in the
case of a pool freight crew is the established tetmiml: if called again, it will begin a stew trip--watt
the exception, of course. of ttunarounds,
which
arc authorized by agreement.
(2) When either a pool crew or a crew in regularly assigned service is required to make an emergency side
W
lapback
trip between their terminals within die scope of Supplement 23, miles made will be added to the mileage of the mgula
trip and paid for on a continuous time basis. Such crews to be confined to their assigned territory. Side trips under the
meaning of this Article am for the purpose of prwecdng livestock, perishables and locomotive failures, in addition to
emergencies as defined in Article 37.
(3) Short trips from a terminal to an outlying point and return, from an outlying point to a terminal and reason, a from
an intermediate point to another intermediate point and return. on ecootutt of locomotive failure, running far fad or
water, wining for wreck car or camxn, to on account of derailment when
inch
conditions arias in connection with
their own train. crows will be paid continuous dine or mileage.
(4)
Even when no emergency is involved, a pool crew may tie notified at any ame prior to the time tat they leave heir
initial terminal (i.e.. switching limits if it is a yard crew point) ro made a side eip and this will riot be considered u
being run off their assigned territory. When a pool new is so notified they will be entitled to the mileage of the side
trip regardless of whether or not they actually make the side trip involved
1 L8 NO - 5460
Awp
No. -7
4
4
Section I-Terminal Provision
When a crew
has
completed
its
trip
to
a terminal and is ordered out on another nun or run off their assigned territory
before completing
tnp,
it
will
be considered as commencing another day and not continuous mileage.
We have studied the awards cited by both parties, starting with the 1981 UP and UTU arbitration
decision, Award No. 10 of PL Board 2703 (Ables); the 1994 BLE and UP decision, Award No. 17 of PL Board
4450 (Eischen) through to the 1999 UTU and BNSF case, Award No. 8 of PL Board 5970 (Klein) and Award No.
213 of PL Board 5124 (Klein) dated 2-7-01 between tire UTU and UP. Moreover, we have studied the positions
of the parties in the context of the so-called Fort Scott 1D Agreement, dated June 24, 1982. We are compelled to
sustain this claim.
We find that on the former Frisco property. Article 30, Section H provides the only contractual authority
for the utilization of multiple trips for either pool freight or extra crews. This board has no authority to sanction
the unilateral creation of a new class of service on this property by the Carrier. called "hours of service relief',
which does not exist in the collective bargaining agreement of the parties, has no bargaining history, no pay
rules, no call rules and absolutely no practice on the property. The Fort Scott
a)
Agreement has been in effect
since 1982 and the Carrier over the years has utilized the short turnaround service rule of Article 30, Section
H(lXa) subject to the time and mileage restrictions for multiple trips in hours of service relief along with various
other uses where the hours of service relief could not be performed within the restrictions of the short turnaround
role or the work would be performed on a single-trip basis and if multiple trips were required they would be
subject to the restrictions and payments required by Article 30 Section H and 1. A basis does not exist in the
record before this board for the unilateral promulgation of a new class of service for hours of service relief which
could permit multiple trips devoid of the time/miles and trip restrictions clearly and unambiguously set forth in
Article 30 Sections H and 1.
PL8 00· 5410
AWp MD-14
5
Award
Claim Sustained.
ORDER: The Carrier is required to compl ' award within thirty days.
Chairman and Neutral MAber
~~'~,t~d~sr~T
Organization Member Carrier Member
Dated:
®o?
lY
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St-I10
Aw o No. -)
4
CARRIER FILE: 55-99-0279
UTU FILE: C - 3908
NMB SUBJECT CODE: 63
BEFORE
PUBLIC LAW BOARD 5410
CASE NO. 74
DR. DAVID TWOMEY
CHAIRMAN AND NEUTRAL MEMBER
UNITED TRANSPORTATION UNION
V.
THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY
CARRIER'S DISSENT
STATEMENT OF CLAIM:
Claims of Conductor G.F. Watkins, Kansas City, Missouri, claiming one day at freight
rate of pay, April 9 [sic] and 19, 1999, "account required to begin a new day."
1
PISS C/UT
It rarely serves any useful purpose to dissent to an Award. Oftentimes, a dissent
is simply a restatement of arguments considered by the Board and an attempt on the part
of the "losing" party to reargue the case. BNSF's intent here is not to reargue the case;
rather, we wish to point out that the decision reached by the Board in this case places
BNSF in the position of being unable to provide hours of service relief to trains in excess
of 25-miles from the destination terminal without incurring an arguably valid basic day
penalty. In other words, accepting the logic and findings of this Board leads to the
undesirable result of violating the contract no matter how the crew is called. Based upon
the obvious "Catch-22" that this decision creates, Award No. 74 of this Board cannot be
considered to set precedent and must be narrowly applied to only those cases specifically
riding on the decision.
The Board rejected the previous arbitration addressing the issue. Moreover, the
Board rejected the permissive nature of the "short turnaround rule," the rule upon which
UTU relied. In any arbitration proceeding this can happen, and anyone who has been in
this business any appreciable amount of time recognizes that arbitration, by its very
nature and structure, may yield unanticipated and sometimes mutually unacceptable
results. In this case, however, compliance with the reasoning and logic of the Board
places BNSF in a position where any hours of service relief performed in excess of 25
miles from the destination terminal will generate a basic day penalty claim.
Furthermore, the Board completely overlooked the fact that hours of service relief
was specifically and unambiguously addressed by the interdivisional service agreement.
This interdivisional service agreement provides, in part, that relief crews (clearly
understood to be hours of service relief crews) would protect such service between
Springfield and Fort Scott, as well as between Kansas City and Fort Scott. Hours of
service relief crews are to be either "short pool" or "extra board" crews. It is critical to
note, as the Board apparently failed to do, that the distance between Kansas City and Fort
Scott is over 100 miles, as is the distance between Springfield and Fort Scott. By its
literal terms, the ID agreement assigns hours of service relief to pool and extra board
crews where the one-way distance is oftentimes well beyond the 25-mile limitation.
2
pLQ, r~co. 5ylo Awo No. '14
GA~121eRS ~ISS~f
This Board decided that the "short turnaround rule" universally applies to hours of
service relief under this collective bargaining agreement. The problem with the decision
is that, on this property, the "short turnaround rule" can only apply to locations within 25
miles of the terminal, otherwise this rule has no application. In other words, if hours of
service relief work is to be performed under the "short turnaround rule," it must be done
within 25 miles or this rule is violated, presumably generating a basic day penalty.
Application of the "short turnaround rule" in this case is clearly irreconcilable with the
fact the ID agreement contemplates hours of service relief being performed by pool and
extra crews within a territory exceeding 100 miles - one-way.
A rational application of the short turnaround rule would suggest that the 25-mile
restriction simply precluded the Carrier from sending a crew out of the terminal a second
time where the 25-mile restriction was exceeded on the first trip. But there is an
arbitration decision on BNSF that finds the short turnaround rule is violated at the time
any imposed threshold is exceeded. This prior Award decided a case where a crew,
operating pursuant to agreement language identical to the instant case, performed two
short turnaround trips. While returning with a train during the second trip, the crew
exceeded 100 miles actually run. BNSF's position was that, under the "short turnaround
rule", the only restriction is that the crew could not be required to depart the terminal on a
third trip, except on the basis of a new day. The Board found otherwise. According to
this previous Award, the "short turnaround rule" was violated at the time the crew
exceeded 100 actual miles run, while performing the inbound leg of the second service
trip. While BNSF continues to disagree, that was the Board's decision and interpretation
of the short turnaround rule." Therefore, it only stands to reason that this rule would
likewise be violated if there were a 25-mile to turning point restriction and the crew went
100 miles before turning. It is for this reason that (I) the parties specifically addressed
relief service in the ID Agreement and (2) the majority of arbitration panels deciding this
issue recognize that hours of service relief is, indeed, a type of service unto itself. The
findings in Award 74 of Public Law Board 5410 are clearly irreconcilable with the ID
agreement providing for pool and extra crews to perform hours of service relief where the
3
P0i~, ND- 5L1lo Awl)
Po.1y
c~RR~ee's
pifscw
nursing point is contractually fixed at a location over 100 miles away. Based upon the
application of this Award and other relevant agreement provisions, the crews are entitled
to a penalty day payment no matter how they are called.
The Award is completely erroneous. It places BNSF in a position where hours of
service relief to trains more than 25 miles from the terminal will generate a penalty basic
day claim. This Catch-22 is due to the Board attempting to pound a square peg into a
round hole by forcing the "short turnaround rule" onto a completely separate class of
service. For all of these reasons as well as others presented during the handling of this
case on the property, the Carrier respectfully dissents to the decision reached in Award 74
of Public Law Board 5410.
Respectfully submitted,
Gene L. Shire
General Director Labor Relations
The Burlington Northern and Santa Fe Railway Company
4
PLS No. Sylo
AWA ND.-7q
ORGANIZATION'S CONCURRING OPINION
In response to Carrier member's written dissent to the Board's decision
in
THE CASE OF AWARD NO. 74
PUBLIC LAW BOARD NO. 5410
The Board's conclusions in this case are faultlessly logical and entirely correct considering the underlying
basis for the Board's decision, which are; the literal language of the Agreement, the customs and practices
on the property, the history and evolution of applicable rules governing hours of service relief operations,
and moreover the complete absence of a rational basis supporting Carrier's position.
Carrier Member's dissent clearly demonstrates either a fundamental misunderstanding of the issues, or
perhaps a determination to ignore reality and continue the quest for an unjustifiable interpretation of
existing Rules and Agreements, notwithstanding the facts and the evidence. Curiously, the Carrier
Member asserts that it is not his intent to "reargue" the case, although he does just that, based on
assertions completely foreign to the case and entirely detached from the Award. While it is not our intent
to embarrass the Carrier Member and it really has no relevance to the issues before the Board, we must
point out for the record that the distance between Kansas City and Fort Scott is less than 100 miles.
Albeit the rationale for his assertions are far from clear, the dissenting officer suggests that this Award
makes it impossible for the Carrier to call any hours of service relief crew without generating a penalty
claim. That is indeed a strange notion, since hours of service relief crews were routinely called and used
without penalty from the days of the steam engine right up to the day in 1999 when BNSF invented a
previously non-existent class of service dubbed "dog-catch multiple trips."
If the Carrier member is legitimately unable to comprehend how hours of service crews may be properly
called and used without violating the Agreement, any crew caller who worked the former Frisco territory
of the merged BNSF system, prior to 1999, is familiar with and can explain the process. It is actually
quite simple. Pool and extra crews may not be used on multiple trips out of a terminal unless such trips
are made under the short turnaround rule, subject to the time and mileage restrictions contained therein.
If, in Carrier's opinion, the existing Rules and Agreements are no longer suitable, the proper means to
secure a change is through the give and take of collective bargaining, not by way of an arbitration
decision.
What really happened in this case is that the Carrier decided to gamble on a radical and totally untenable
position, for no other purpose than to use one crew where two or more are required by Agreement rule.
As a result, pool and extra crews were denied work that they had performed for as long as history records.
This honorable Board has now adjusted the matter and upheld the rules as written and as applied
consistently for at least a century or more.
The Organization fully concurs with the Board's Findings and Award.
Respectfully submitted,
R. L. Marceau
Organization Member