., PUBLIC LAW BOARD NO,
· AWARD NO. 8
NMB CASE NO. 8
UNION CASE NO. S-AV-68M
COMPANY CASE NO. 11-24-148
PARTIES TO THE DISPUTE:
NORTHEAST ILLINOIS REGIONAL COMMUTER
RAILROAD CORPORATION
- and -
BROTHERHOOD OF RAILROAD SIGNALMEN
STATEMENT OF CLAD:
Claim on behalf of J. D. Renfrow for payment
at the overtime rate for all Saturdays worked
by Claimant, from February 5, 1994, until
October 29, 1994, account Carrier violated
the current Signalman's Agreement,
particularly Rules 15 and 51, when it changed
the days off for the Claimant's position to
Sunday and Monday.
OPIT?30N OF BOARD:
The Claimant in this case is J.D. Renfrow, assigned to the
position of Signal Maintainer, with headquarters at Blue Island
Tower. For 10 years prior to the initial claim date the position
of Blue Island Signal Maintainer worked Monday through Friday
with Saturday as stand-by day and Sunday as rest day. On
September 3, 1993, Carrier issued an assignment bulletin (93086A), changing the Claimant's Blue Island Signal Maintainer
position to Tuesday through Saturday with Sunday as stand-by day
and Monday as rest day.
As a result of the bulletin, the organization submitted a
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position. However, on September 28, 1993, the Organization
notified Carrier that it was withdrawing the aforementioned claim
"without prejudice" to their-position.
Subsequently, on October 8, 1993, the Organization filed a
second claim, citing Carrier's "continuing violation of Agreement
Rules 15 and 51"- when, effective September 1, 1993, Claimant's
standby days off were changed from Saturday and Sunday to Sunday
and Monday.
BRS Rules 51 and Rule 15 (Section 2) state:
RULE 51. MONTHLY RATED SIGNAL MAINTAINERS:
Employees assigned to the maintenance of a
territory of plant will be paid on a monthly
basis.
The straight time hourly rate for monthly
rated Signal Maintainers shall be determined
by dividing the monthly rate by two hundred
thirteen (213)* hours. Employees will be
paid actual necessary expenses supported by
receipts when unable to return to
headquarters daily.
*Effective July 1, 1989, comprehended hours
for monthly rated Signal Department employees
increases from 213 to 213 2/3 hours per
month.
See supplement No. 12.
No overtime is allowed for time worked in
excess of eight (8) hours per day on the
regularly assigned five (5) days per week the
employee is scheduled to work, nor on the
first scheduled rest day (6th day) of the
work week or holidays; on the other hand, no
time is to be deducted unless the employee
lays off on his own accord.
On the regularly assigned five (5) days per
week the employee is scheduled to work,
ordinary maintenance and construction work
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will not be required outside of his
bulletined assigned hours. This does not
apply to such travel time or work a
Maintainer might run into when completing a
certain job worked on during the day he might
leave headquarters or return thereto outside
his regular assigned hours.
Monthly rated employees will have Sunday as
assigned rest day, if possible.
For service performed on assigned rest day,
rules applicable to other employees of the
same class shall apply as provided in Rule 15
and 17.
tt,t**:r,r
RULE 15.
SECTION 2--ESTABLISHMENT OF A SHORTER WORK
WEEK:
NOTE: The expressions "positions"
and "work" used in this rule refer `
to service, duties, or operations
necessary to be performed the
specified number of days per week
and not to the work week of
individual employees.
(a) GENERAL: The Carrier establishedeffective September 1, 1949, for all
employees covered by this agreement, subject
to exceptions herein, a work week of forty
(40) hours consisting of five (5) days of
eight (8) hours each, with two (2)
consecutive days off in each seven (7); the
work week may be staggered in accordance with
the carrier's operational requirements; so
far as practicable, the days off shall be
Saturday and Sunday.
(b) FIVE DAY POSITIONS: On positions the
duties of which can reasonably be met in five
(5) days, the days off will be Saturday and
Sunday. -
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The Organization requested-that firsttrickBlue Island
Tower Signal-Maintainer J. Renfrow be compensated the time and
one-half rate for all Saturdays worked from September 3, 1993,
until the claim was resolved. Finally, on October 17, 1993, the
Organization notified Carrier that the claim dated October 8,
1993 contained an incorrect file number, and included a corrected
copy of the October 8claim with the correspondence. Carrier did
not respond to the October 18, 1993 claim, and on January 12,
1994 the Organization sent Carrier correspondence asserting that,
in addition to the aforementioned BRS Rules, Carrier had also
violated Rule 56 of the Agreement "when it allowed 60 days to -
pass without responding to the corrected claim." The General
Chairman of organization maintained that the alleged time limit
violation the claim should be allowed "as presented."
Carrier's Director of Labor Relations conceded that the -
February 1, 1994 response to the claim was outside of the sixty
(60) day limit. However, Carrier went on to state that:
"Rule 15, Section 2 and Rule 51 were not
violated. The language of the rules clearly
does not require Saturday arid Sunday to be
the rest days. The change was within the
Carrier's right to efficiently manage the
operation.
Due to the procedural violation, Mr.
Renfrow's stand-by day will be restored to
Saturday and rest day restored to Sunday
immediately. Mr. Renfrow will be compensated
at the overtime rate for all Saturdays worked
between September 4, 1993 and the date the
claim was declined, February 1, 1994. any- _
further claim is declined."
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Carrier's admitted violation of the time limit on claims
provision was cured by payment of the claim "as presented" from
presentation date to the date of the belated but effective denial
on the merits on February 1, 1994. The principles governing such
questions were addressed in precedent decisions of the NRAB Third
Division, including Award 3-26239. Further, Decision No. 16 of
the National Disputes Committee is squarely on point with respect
to the disputed procedural/timeliness aspects of this case. With
respect to the merits issue, the Carrier's rescission of the work
week change which precipitated the claim and restoration of the
status quo ante, effective October 29, 1994, seems to obviate the
merits issue grieved in this particular claim. (No opinion is
expressed regarding the Organization's assertion that Carrier
honored the Saturday-Sunday rest days for only one week before `
again imposing the revised schedule in the first week of
Nonember, 1994). The only question remaining in this particular
claim is whether Carrier violated the cited Rules during the
period February 5-October 29, 1994.
Rules 15 and 51 read together establish the premise that
days off for monthly rated five-day positions should ordinarily
be Saturday and Sunday, if possible and so far practicable in
accordance with Carrier's operational requirements. Evidently,
such scheduling was possible and practicable for some ten (10)
years prior to the rescheduling which gave rise to this claim in
October, 1993. The presumption in favor of Saturday and Sunday
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days off may be rebutted by Carrier's showing that such
scheduling was no longer possible and/or practicable due to
changed operational requirements. In this case, Carrier failed
to meet that burden of persuasion in handling on the property.
No reason for the unilateral rescheduling was even- suggested by
Carrier until the penultimate appeal denial of March 18, 1994
when Carrier's Labor Relations Director asserted: "[I]n
September 1993, the Engineering Department, in meeting
operational requirements, filed (sic) positions of a Signal
Testman and Electronics Technician. Due to budgetary
restrictions, no positions were added. The assignments were
filled by re-assigning forces, The Corporation was within
discretionary rights." Even if arguendo, such a bare,
unsupported
non
sequitur could be considered evidentiary, the
facts asserted by Carrier were refuted by the General Chairman's
response of March 28, 1994: "There were no operational changes
from what had been in effect in the past. The Carrier runs the
same number of trains as (sic) when the days off were Saturday
and Sunday as they do now with the change of days off to Sunday
and M:.)nday. Claimant's position is a five day position now the
same as in the past". Carrier has failed to demonstrate that
impossibility, impracticability or changes in operational
requirements warranted the unilateral change from the SaturdaySunday rest days presumptively favored by Rules 15 and 51.
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AWARD
Claim sustained.
Dana Edward Bischen, Chai,.msn
Dated at Ithaca, New York on October 13. 1996
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DISSENT TO AWARD 8
CASE NO 8 OF PUBLIC LAW BOARD
$565
Strong dissent to Award No. 8 of Public Law Board 5565 is essential because the Majority
disregarded the Corporation's stated reason, supported by Rule 51 (MONTHLY RATED SIGNAL
MAINTAINERS), for changing the assigned rest day on the Blue Island Tower Signal Maintainer
first trick position to Monday, thereby also changing the 6th day of the workweek of such position
(referred to in the claim handling "standby day," since the incumbent of the position is
compensated by virtue of his monthly rate for any emergency service performed on the 6th day
of his workweek as well as any emergency service necessary to be performed outside of his
bulletined assigned hours). Said Rule 51 states, in part,
Monthly rated employees will have Sunday as assigned rest
day, if possible ....(Emphasis added)
The Corporation stated in the handling on the property, "For the record, in September of
1993 the Engineering Department, in meeting operating requirements, filed [sic] positions of a
Signal Testman and Electronics Technician. Due to budgetary restrictions, no positions were
added. The assignments were filled by re-assigning forces. The Corporation was within its
discretionary rights."
The Corporation was within its discretionary rights. Two new positions had to be
established for the work which needed to be performed. Budgetary restrictions did not permit
adding any new positions in the Engineering Department, accordingly, such forces as existed at
that time had to be reassigned, causing the resultant change in claimant's position. It was not
possible to keep claimant's assigned rest day as Sunday. This reason standing alone was
sufficient under Rule 51, the special rule which governs monthly-rated positions such as
claimant's, to support the Corporation's action, irrespective of the fact that the Organization's
allegation that the same number of trains were running as before the change on claimant's
position received no response from the Corporation.
The Majority stated, in part,
Rules 15 and 51 read together establish the premise that days
off
for monthly rated five-day positions should ordinarily be Saturday
and Sunday, if possible and so far practicable in accordance with
Carrier's operational requirements. Evidently, such scheduling was
possible and practicable for some ten (10) years prior to the
rescheduling which gave rise to this claim in October, 1993. The
presumption in favor of Saturday and Sunday days
off
may be
rebutted by Carrier's showing that such scheduling was no longer
possible and/or practicable due to changed operational
requirements .... -
This conclusion is erroneous. "Past practice" has nothing to do with what changes on a position
might be needed at some future date. The language above quoted from Rule 51 is very broad.
It does not address operational requirements or past practice. Rule 51 specifically addresses
the conditions governing monthly-rated positions, the comprehended hours paid in exchange for
a monthly pay rate, and so forth. While Rule 15, Section 2 cited by the Organization
was not
violated in this claim, as the Corporation argued, claimant's position is not and has never been
a five-day position with rest days of Saturday and Sunday, or "days off' (ie., rest days) in the
same sense as hourly-rated Signal positions assigned pursuant to the Forty-Hour Workweek
Rule (Rule 15, Section 2).
For the above stated reasons, this Award will not be considered by the Corporation to
establish a precedent.
_ V
J. .Butler, Carrier _ _
Me ber, Public Law Board 5565