Org. File: 960326.63
Carrier File: EFA 96-03-26AC
PA
TS2
DTSPTTTF
Case No. 2
Award No. 2
PUBLIC BOARD NO. 6038
Brotherhood of Locomotive Engineers-BNSF/MRL
Burlington Northern Santa Fe Railroad
STATEMENT OF CT.ATM:
"Claim on behalf of Engineer G. A. Bennett requesting payment
of forty-five (45) minutes Initial Terminal Delay (ITD) at North Antelope Mine on December 24,
1995 account North Antelope Mine is the point where the service portion of the trip began."
FINT)TN(*S:
This Board, upon the whole record and all of the evidence, finds that the
Employees and Carrier involved in this dispute are respectively Employees and Carrier within
the meaning of the Railway Labor Act as amended and that the Board has jurisdiction over the
dispute involved herein.
DFC'TSTON ANT) DTSC7ISSTON:
In 1979 the Carrier and the Organization established an
interdivisional pool with a home terminal of Gillette, Wyoming and an away-from-home
terminal at Guernsey, Wyoming. Even though the pool agreement makes some reference to
deadheading, an accepted practice already existed of having engineers go on duty under pay at
Gillette and then being transported by van to intermediate locations (which were the various coal
mines) where the engineer would take charge of his train and proceed south to Guernsey without
deadhead pay. This practice was known as "transport-under-pay" (TUP). It was affirmed
numerous times by Boards that TUP did not involve deadheading and that crews transported
under pay were not entitled to separate deadhead payments.
In 1995 the first division of the National Road Railroad Adjustment Board (Referee
Richter) issued Award 24393 involving the UTU and the BN sustaining a claim filed in 1991 for
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initial terminal delay (ITD) at an intermediate point under the following circumstances: (1) the
Claimant's regularly operated from Northtown to Staples, Minnesota, (2) they were called to
deadhead in combined service to Becker where they took charge of a train at noon, and (3) their
train didn't leave until 4:25 p.m. for Staples. The pertinent part of the award reads as follows:
"The October 31, 1985 National Agreement changed the method in which
employees were paid when they deadheaded. Article VI of the 1985 National Agreement
had a savings clause giving each Carrier signatory to the Agreement the right to retain
their deadheading rules. This record is void of any information that the Carrier exercised
this right, therefore the October 31, 1985 Agreement is pertinent to this case.
Question and Answer No. 8 to Article VI of the 1985 Agreement deals with the
matter before this Board. That Q and A reads as follows:
Q-8 In situations where the carrier chooses to combine deadheading with
service, at what point does initial terminal delay begin?
A-8 At the point and time the crew actually reports on duty for the service trip.
The Question and Answer is clear and unambiguous. In this case, the time for
initial terminal delay started tolling when the crew arrived at Becker were their service
trip was to begin.
The Claim will be sustained in accordance (sic) Rule 39(a) of the Schedule
Agreement, which deducts the first 75 minutes of delay or 3 hours and 10 minutes."
Beginning in 1994 the BLE filed claims such as the instant one involving the GilletteGuernsey pool. It should be noted, however, subsequent to Award 24393, that the Parties agreed
when a pre-1985 employee is called to combine deadhead and service pursuant to Article VI of
Arbitration Board No. 458, ITD is applicable at the intermediate point where the engineer takes
charge of his train.
The dispute here relates to the Claimant's status. The Carrier claims the Claimant was
not, as in Award 24393, called to deadhead in combined service. Instead, they claim he was
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Award No. 2
called to be transported under pay (TUP). The Carrier claims that the distinction between
transport underpay and deadheading still exists post-1985 just as it did pre-1985. Therefore,
from their perspective any board award pursuant to the 1985 National Deadhead Rule (Article
VI) did not change their previous right to decide to deadhead a crew or transport under pay.
They agree if they were to elect to deadhead the Claimant combined with service, ITD would
apply after the waiting period at the initial terminal. However, they argue they have a third
option and that is to call an employee to transport under pay. When this is done, as they claim it
was here, no deadhead and no ITD applies consistent with the long-standing practice.
The Union argues first that as a factual matter the claim, according to the call slip, was
called in combined deadhead and service. Second, and foremost, it is their position that TUP for
ITD proposes, at intermediate points between the home and away-from-home terminals at which
a crew takes charge of a train, did not survive the 1985 Agreement. This is because Article VI
contained the following language:
"This Article shall become effective July 1, 1986 except on such carriers as may
elect to preserve existing rules or practices and so notify the authorized employee
representatives on or before such date. (Emphasis ours)"
They note that the Organization was never notified either prior to July 1, 1986, or at any time
thereafter, that the Carrier intended to preserve its previous practices involving TtTP on this
property. They also vigorously argued that TUP and deadheading combined with service are the
same because employees are both paid on a continuous mileage basis. Indeed, TUP was always
an exception to the deadhead rule. The Organization contends all Awards relied on by the
Carrier are distinguished because they are pre-1985 and or that they did not involve ITD.
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Both Parties' positions are merely summarized above (for purposes of explaining the
basic issue dividing the Parties). Their submissions and arguments were quite detailed including
many case citations.
The critical and fundamental issue before the Board is this:
"Did Article VI of Arbitration Award No. 458 change the existing practice with
respect to TUP and ITD at intermediate points between Gillette and Guernsey?"
In the~opinion of the Board, the answer is yes because: (1) TUP is, for practical and
essential purposes, the same as the provisions of Section 1 of Article VI which provides for
continuous miles when transported without an engineer operating his own train to a distant point
to take charge of this train. And (2) because the Carrier did not elect to preserve the TUP
practice and instead has enjoyed the relief and benefits of Article VI.
While Article VI is titled "Deadheading," for all practical purposes it is a transport-underpay rule because that is one of the things (if not the principle thing) it provided for. It gave
Carriers who did not have it through rule or practice the right to pay continuous miles instead of
a deadhead plus service when transporting to an out-of-terminal point to take charge of a train.
The intent, purpose and effect of Article VI cannot be limited to the simple idea of deadheading
and cannot be reasonably divorced from the idea of moving or staging crews under continuous
pay while not operating a train.
The Carrier wants three options for handling crews in this pool. They want to be able to
transport under pay, to pay on a continuous basis by combining service and deadhead or to pay
the deadhead separate from service. Article VI gave Carriers the later two options. Under
Article VI the only way they could have retained TUP as distinct from Article VI -- and all that
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came with it including TTD at intermediate points under Question and Answer no. 8 -- is to have
made a choice. Article VI did not provide the opportunity for Carriers to have their cake and eat
it too.
In this regard, it is noted the Carrier acknowledged it accepted Article VI so it would gain
consistency among all its various properties that make up its consolidated system. TUP as a
practice existed only on certain predecessor properties. By accepting Article VI, the Carrier not
only gained consistency, it also gained its benefits. For instance, Article VI offered the Carrier
the ability to handle a crew into and/or out of established terminals without automatic release not
previously available on any former property. They can also now call a crew to deadhead in
combined service from the home terminal to the away-from-home terminal and work the same
crew back on a train to the home terminal on continuous time or miles. When a crew is handled
accordingly, run-around and automatic release rules are inapplicable, allowing the Carrier the
ability to better serve its customers by utilizing its work force to the fullest extent.
The applicability of ITD at intermediate points under Q&A No. 8 does represent a change
from the practice of TUP. However, nothing in Arbitration Board 458 guarantees every change
in the agreement was good for all Carriers or allowed individual Carriers to cherry pick what
parts of Article VI they liked and those they didn't. The Carrier had to make a judgement
whether the net effect of Article VI was in their best interest and make an election. So they did.
Uniformity on a system-wide basis or on a national basis comes at some price. If the price was
too high for Article VI on this Carrier, they could opt out of its applicability or negotiate local
accommodations.
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AWARD
The claim is sustained.
Gil Vernon, Neutral Member
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Richard K. Radek, Organization Member
Signed this ~'~day of July, 1998
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