PUBLIC LAW BOARD NO. 5567
AWARD NO. 8
NMB CASE NO. 8
UNION CASE NO.
COMPANY CASE NO.
PARTIES TO THE DISPUTE:
UNION PACIFIC RAILROAD COMPANY
(former Missouri Pacific Railroad
Company)
- and -
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYEES
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when, effective March
18, 1989, the Carrier established positions on
Eastern District Tie Gang 9163 with a Saturday
through Tuesday work week and Wednesday through
Friday rest days (Carrier's File 890557 MPR).
2. As a consequence of the aforesaid violations, the
employes assigned to the Eastern District Tie Gang
listed below* shall each be allowed:
'... payment of time and one-half for the
week end work of Saturday, and Sunday,
and eight (8) hours each day for Wednesday to Friday, which would have been
their regular work days, if these positions had been advertised properly, in
line with the Agreement. This claim for
thirty four (34) hours for each claimant,
per week, from Saturday, March 18, 1989,
continuing thereafter, until such time
that these positions are readvertised,
and established in line with the Agreement as outlined above.'
*J: L. McCleave K. E. Halstead L. M. Steel
G. S. Turner G. G. Martin K. L. Barnhart
T. L. Niemeier T. D. Conner J. L. Kaesberg
C. I. Futrell Jr.- - M. W. Dobson J. E. Olive
D. A. Crowley G. O. Deaner T. L. Wengert
R. J. Wengert M. G. Mattingly G. K. Hawkins
W. F. Campbell P. L. Colandro P. J. Desrochers
K. D. Eppes : J. D. Hays M. A. Bader
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'1*N. G. Minor C. L. Anderson L. Spradling
B. R. Thies F. L. Sevier G. P. Polk Jr.
J. A. Warner B. J. Buckley J. R. Anderson
R. A. McKinney H. L. Barber R. L. Herron
D. L. Lowry D. Lain K. D. Justice
V. K. Davis J. E. Willard A. R. Manis
C. F. Furry L. R. Steele K. E. Wengert
R. C. Benson Jr. M. L. Camp C. A. Flowers
OPINION OF
13QAM:
The Parties have cited Agreement Rule 14 ("Work Week") and
the Memorandum of Agreement (MOA) dated August 1, 1974 as
pertinent to this dispute:
Rule 14
"WORK WEEK:
Rule 14. Section 1.
Note: The expressions 'positions' and 'work' used
in this Section 1 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 employes.
(a) GENERAL. Subject to the exception contained in
this agreement, the carrier will establish a work week of
forty (4o) hours, consisting of five (5) days of eight
(8) hours each, with two (2) consecutive days off in each
seven (7); the work weeks 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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(f) DEVIATION FROM MONDAY - FRIDAY WEEK. If in
positions or work extending over a period of five (5)
days per week, an operational problem arises which the
carrier contends cannot be met under the provisions of
this Section 1, paragraph (b), above, and requires that
some of such employee work Tuesday to Saturday instead of
Monday to Friday, and the employes contend the contrary,
and if the parties fail to agree thereon, then if the
carrier nevertheless puts such assignments into effect,
the dispute may be processed as a grievance or claim
under the rules agreement.
August 1, 1974 MOA
"1. At the election of a majority of
employees working in a gang with the
concurrence of the District Engineer on the
District where such gang is working, a work
week of four (4) days of ten (10) hours may
be established with work week Monday through
Thursday, rest days Friday,-Saturday and
Sunday. By agreement between the majority of
the employees working in such gang and the
said District Engineer, three other
consecutive rest days may be substituted
therefor. The ten (10) hour day will include
twenty (20) minutes for lunch without
deduction of pay.
2. Rules in effect covering payment for
service performed on rest days will apply.
3. Rules in effect covering payment for-the
performance of all overtime work other than
on rest days is hereby amended to the extent
that employees assigned to work as provided
in paragraph 1 of this Agreement will be
compensated at the overtime rate for work
performed in excess of ten (10) hours on an
assigned work day, except as provided in
paragraphs 4, 5 and 6 of this Agreement."
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In 1989, Carrier commenced a major cross tie renewal project
on 81 miles of track in the Hoxie Subdivision, between Harviell- -
Junction, Missouri and Tuckerman, Arkansas. Prior to February
10, 1989, District Tie Gang 9161 and Division Surfacing Gang 9183
worked on this project Monday through Friday, rest days Saturday
and Sunday. Managerial dissatisfaction with the pace of the
project led Carrier to invoke the "operational problems"
provision of Rule 14 (f) and the MOA of August 14, 1974. After
petitioning the members of the two existing gangs and eliciting
majority concurrence, Carrier changed and compressed their
workweeks for the duration of the project to ten-hour days,
Saturday through Tuesday, rest days Wednesday to Friday.
By telephone notification and letter of February 9, 1989,
Carrier's Assistant Director Labor Relations notified the BMWE
General Chairman of the workweek changes for Gangs 9161 and 9183
and also of intent to establish of a new District Tie Gang 9163
with the same ten-hour day and four-day week schedule. Despite
Organization protests, Carrier filled the positions on the new
Tie Gang 9163 through a series of vacancy bulletins, commencing
February 10, 1989. The bulletins established the gang with a
work week of four (4) days of ten (10) hours each with Wednesday,
Thursday and Friday designated as rest days. Claimants, most of
whom were furloughed employees, bid in the vacancies as
bulletined and worked under those conditions from March 18, 1989
through June 12, 1989.
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On April 17, 1989, Assistant General Chairman G. Baker -
submitted the following to Carrier:
"I am presenting a grievance and protest by
and in behalf of this organization concerning
the manner in which several positions were
bulletined and assigned to Eastern District
Tie Gang (EDTG) 9163, in the vicinity of
Hoxie, Sub., dated 2-24-89, effective 3-1889.
Bulletin and new assignment notice numbers
10, 12 through 26, 28 and 29 for all new
positions in establishing EDTG 9163,
effective 3-18-89, indicate the work days of
Saturday, Sunday, Monday and Tuesday, with
rest days of Wednesday, Thursday and Friday.
Under our current working Agreement,
especially Rule 14, there is not provisions
contained within, which will allow the
Carrier to establish such work days as
outlined above. The Agreement provides for
the establishment of a work week consisting
of five (5) working days with rest days of
Saturday and Sunday. If it is the Carrier's
intent to establish a four (4) day ten (10)
hour work week, this must be accomplished by
the provisions outlined in the Memorandum of
Agreement of August 7, 1974, and only after
the gang has been established with five (5)
working days.
At no time has the Carrier approached the
General Chairman and indicated a desire to
have any conference concerning the work days
outlined above. If the Carrier desires to
change or deviate from our current working
Agreement, the place to do so is at the
bargaining table, and not through arbitrary
actions such as these.
Therefore, we are requesting that these
positions be readvertised with the work days
of Monday through Friday, with rest days of
Saturday and Sunday, as outlined in our
current working Agreement."
Carrier denied the claim maintaining:
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"As background, the Carrier's operational
requirements due to traffic patterns and
customer commitments were such that these
were the only days where the Carrier could
minimize to the extent possible traffic
disruption and achieve production to get the
job done as quickly as possible. The
bulletins were issued as such to inform the
employees that if bulletined the conventional
way, the Carrier would be approaching them
from day one to work out a similar work week
arrangement. As information, due to the
traffic,-some of the Carrier's gangs on the
Hoxie Subdivision achieved some of the
poorest production of all gangs across the
Railroad in 1988. As you well know, if the
production cannot be achieved, then the
Carrier does not require the services of a
gang.
As to your contention that at no time has the
Carrier approached the organization about
this, you are apparently misinformed. You
should be aware, and I am in receipt of copy
of same, that a letter was forwarded to
General Chairman Borden on February 9, 1989,
attempting to reach some type of agreement.
The ultimate response from the Organization
was 'no' the Organization was not agreeable,
and likewise the Organization apparently did
not request a conference. I do not concur
that the Carrier's actions were arbitrary,
but rather up front about the whole issue."
Rule 14 (f) and the MOA of August 14, 1974 establish a twostep process by which Carrier can gain relief from the Monday
through Friday-eight-hour day provisions of Rule 14 (b).
Compliance with those Agreement provisions required Carrier first
to establish District Tie Gang 9163 with a five (5) day work
week, with Saturdays and Sundays designated rest days in
accordance with Rule 14 (b). Once established, the members of -
Gang 9163 had a right of election to determine if amajority
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concurred with Carrier's proposed change to a ten-hour, four-day
work week, with rest days Wednesday-Friday. By unilaterally
establishing the new gang with that irregular schedule, Carrier
deprived the employees of their right of election and violated
both Rule 14 and the MOA of August 14, 1974.
The "operational problem" justification for Carrier's
invocation of Rule 14 (f) and the legitimacy
of
the need to
establish a work week consisting of four (4) ten (10) hour
workdays, followed by three (3) rest days, is not in dispute.
But Carrier's resort to self-help rather than complying with the
requirements of the Agreement to obtain majority concurrence from
the gang members compels a conclusion that Carrier violated the
Agreement. The damages claimed are excessive, however, and the
appropriate remedy is payment of time and one-half for the
Saturdays and Sundays worked by Claimants between March 18, 1989
and June 12, 1989.
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AWARD
Claim sustained to the extent indicated in the opinion.
Carrier shall implement-this Award within thirty (30)
days of its execution by a majority of the Board-
Dana Edward Eischen,a_
Dated at Ithaca. New York on Aril 19. 1995
Union M tuber
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Company Member
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