This is an arbitration of an unresolved interest dispute between the Brotherhood of Maintenance of Way Employer ("BMWE" or "Organization") and the Grand Trunk Western Railroad ("GTW ', Grand Trunk" or "Carrier's arising out of negotiations which culminated in new Collective Bargaining Agreements ("Agreements', executed May 18, 1998. Those Agreements included moratoria on any new notices prior to September 1, 1999, to he effective after December 31, 1999. In negotiations leading to that Agreement the Organization's September 29, 1995 Section 6 notice addressed several issues relating to a Commercial Driver's License ("CDL'), including a demand for payment of a wage differential to employer when assigned to positions requiring a CDL. The new GTWBMWE Agreements addressed the CDL matter is in two places. First, with respect to the costs associated with obtaining a CDL and the use of company trucks to take CDL driving tests, the Parties agreed as follows:
Second, when they could not reach agreement on BMWE's CDL wage differential demand, the Parties agreed to submit the matter to final and binding arbitration in the May 18, 1998 Letter of Agreement which established this proceeding.
In August 1998, the Parties selected me to hear and decide their CDL dispute in interest arbitration, in accordance with procedures set forth in Side Letter No. 5, dated May 19, 1998. Extensive pre-hearing and rebuttal submissions were filed and exchanged, following which a hearing was held at Detroit, Michigan on February 29, 1999. Both Parties were represented and afforded full opportunity to present oral and documentary evidence in support of their positions. Following the hearing, additional evidence and supplemental briefs were filed and exchanged in May and June, 1999, after which the record was declared closed.
Under the terms of Side Letter No. 5, dated May 19, 1998, the Parties agreed to submit the following questions to me for final and binding interest arbitration:
For many years the Canadien National Railroad ("CN System") has owned the Grand Trunk Western Railroad, which also includes the former Detroit and Toledo Shore Line Railroad Company ("D&T SL's and the former Detroit Toledo and Ironton Railroad Company ("DT&I"). The present day GTW has about 900 track miles and employs about 300 individuals represented by BMWE under three (3) separate Collective Bargaining Agreements: Pre-1980 Grand Trunk, former Detroit and Toledo Shore Line "(D&TSL'% and former Detroit, Toledo and Ironton (DT&r~. [The Interstate Commerce Commission conditioned it's approval of GTW's 1980 acquisition of D&TSL and DT&I upon imposition of "New York Dock" protective conditions but as of June 1999, the Parties have not yet consolidated the three separate agreements.] Thus, this arbitration proceeding impacts all three of the separate agreements which now govern BMWE-represented employees on the combined GTW, all of which were amended by the above-referenced Agreements of May 1998.
Following full integration of the combined Grand Trunk into the CN System effective January I, 1992 the Canadian Government privatized the enterprise 1995, with CN shares now traded on the New York Stock Exchange. CN Systems, which also includes the Soo Line Railroad, reached agreement in 1998 to acquire the Illinois Central Railroad ("ICG) and the Chicago, Central & Pacific ("CCBcP'l; a transaction approved by the Surface Transportation Board ("STB"), subject to New York Dock labor protective provisions and successful merger negotiations. At present, CN has about 19,800 track miles, Illinois Central has about 2,600 track milts and CC&P has about 790 miles. Thus, the 900 track miles of the combined Grand Trunk Western represents less than 4 percent of CN Railways' merged system.
The BMWE is a main line railroad labor organization representing most of the construction, track repair and roadway maintenance employees on the Nation's major rail carriers. Prior to 1988, GTW participated in national bargaining with BMWE, along with most other Class I railroads, by delegating to the National Carriers' Conference Committee ("NCCC'~ and its predecessor organizations authority and responsibility to negotiate wages and rules. However, BMWE and the NCCC have not traditionally established uniform classifications or rates of pay on the various railroads. Instead, national percentage wage increase settlements usually have been applied acrossthe-board to already existing base rates, which the individual carriers and BMWE general committees occasionally adjust to reflect equity and marketplace trends. As a result, one finds a patchwork of differences among and between various railroads' BMWE classifications, work rules and pay rates. Moreover, comparing basic rates at any given moment in time is problematic because the different bargaining cycles have resulted in activation of percentage COLA and lump sum increases in various collective bargaining agreement at different times. This lends another element of fluctuation in the relationships of wages under the various BMWE agreements with various carriers, making basic wage comparisons largely an "apples to oranges" proposition.
Grand Trunk opted to withdraw from national handling parties in 1988 and since then has negotiated locally with various labor organizations, including BMWE. Since the early 1990's, CDLrelated issues have been a source of conflict in negotiations between BMWE and the nation's rail carriers, both in national bargaining and on individual properties. The present dispute arose out of negotiations generated by Section 6 notices served by the BMWE on September 29 and October d, 1995. As noted, supra, when the Parties executed their most recent Agreements) in May 1998, the question of CDL differential was left unresolved and referred to interest arbitration.
Some background discussion of the governmental requirement that operators of certain types of highway motor vehicles possess a CDL should help to place this dispute in context. Issuance and regulation of licenses to operate highway motor vehicles traditionally has been an area for State action but since the mid-1980's the Federal government has assumed a much greater role. In 1985, Congress directed the United States Department of Transportation ("DOT"), through the Federal Highway Administration ("FHWA'), to enact regulations regarding the operation of certain commercial motor vehicles. See 49 U.S.C. §104; 49 U.S.C. §205. Those regulations, including those found in 49 C.F.R Part 391, primarily concern an employer's responsibilities in connection with qualifications and certification of drivers of commercial motor vehicles. FHWA qualification and certification are required for employee who drive vehicles in excess of 10,000 tbs., carrying hazardous materials or carrying 16 or more passengers, including the driver. The FHWA certification procedures, which became effective in 1988, require employers like GTW to certify, among other things, that employee who operate commercial motor vehicles are qualified and medically fit to do so.
Congress again entered the field of commercial vehicle driving safety in 1986, when it enacted a law directing the DOT to promulgate regulations "... establishing minimum uniform standards for the issuance of commercial drivers' licenses by the States...: ' 49 U.S.C. §2705. Those regulations, known as the Commercial Driver's License ("CDL') standards, resulted in uniform national CDL qualifications, effective April 1, 1992, four years after the FHWA certification standards. See 49 C.F.R Part 383. Vehicles ordinarily used in the rail industry which were affected by the April 1992 uniform CDL requirements are single vehicles with a gross vehicle weight rating
(GVWR) of 26,001 or more pounds (Group B) or single vehicles or combination of vehicles which are either designed to carry 16 or more passengers or are placarded for hazardous materials (Group C). See 49 C.F.R Part 383.
While the CDL standards and FHWA certification both concern commercial driving safety, they are separate and distinct governmental regulations. Unlike FHWA certification, CDL's are issued to the individual driver by the state and are not administered by the employer. Obtaining and maintaining a state-issued CDL is the personal responsibility of the individual employe and the CDL holder is required to maintain vehicle inspection reports and duty status logs, subject to criminal penalties for failure to comply. As discussed in greater detail, infra, the basic requirements for obtaining a CDL, effective April 1, 1992, are set forth in 49 CFR Part 383- Commercial Driver's License Stand": Re,uirementc and Penalties- with additional knowledge and skill requirements are set forth in Sections 383.117 and 383.121, respectively, for passenger endorsements and hazardous material endorsements on CDL's.
Ever since the DOTIFHWA regulations became effective, BMWE has been pursuing bargaining initiatives with individual carriers and at the national bargaining level to obtain extra compensation, usually in the form of an hourly differential, for employees whose job duties include driving vehicles requiring possession of a CDL. Those efforts have produced the following mixed results: 1) an interest arbitration award establishing a differential payment of g.30/hour to employees when assigned to positions requiring a CDL, subject to application of the COLA formula [ Conrail/BMWE (Award No. 2 of Public Law Board 5542, Arbitrator Robert M. O'Brien, March 29, 1996. See also Special Board of Adjustment 1099, Arbitrator Arnold M. Zack, February 3,
1998)]; 2) an Emergency Board recommendation which declined to improve upon the 5.30 "O'Brien Award" CDL differential or extend it beyond Conrail to the rail carriers which participated in the most recent round of national bargaining between the BMWE and the NCCC [Recommendation No. 29 of Presidential Emergency Board 229, Chairman David P. Twomey, June 23, 1996. See also Special Board of Adjustment, BMWE and NCCC (Commercial Driver's License Dispute), George Nicolau, July 2, 1997]; 3) negotiated agreements with several individual small and mid-size carriers and two major carriers, outside of national bargaining, before and after Recommendation No. 29 of PEB No. 229, providing various amounts and types of differential payments expressly linked to the CDL requirement [ Soo LineBMWE Agreement. May 16, 1992; Denver & Rio Grande LineBMWE Agreement, October 1, 1992; Indiana Harbor Belt LineBMWE A;areerstent November 16, 1996; Texas. Mexican Railway ComRanyBMWE Agreement, January 27, 1997; Maryland & penn,sylvaniafBMWE Agreement, March 10, 1998; CSXT-ConraiVBWU Implementing Agreement=, March 23, 1999; Norfolk Cou hem-Con_rai /RMWE Implementing Ag~ement, May 6, 1999]; and, 4) a negotiated agreement with a major carrier in which no specified differential amount is expressly linked to CDL in the final document, albeit the bargaining history plainly manifests the mutual intent of the contracting parties to attribute some portion of substantial increases in truck driver wage rates to the CDL requirement. (Union PacificBMWE Agreements. August 13. 1993].
The Parties disagree as to whether the single arbitrated CDL differential and the several negotiated CDL differentials in collective bargaining agreements between BMWE and a minority of the nation's rail carriers constitute a "growing trend" or "pattern". For present purposes, it suffices simply to set forth those CDL contract provisions chronologically, as follows:
It is hereby agreed that a di82rential in the amount of $0.30 per hour will be allowed section laborers, welders, and/or carpenter: who are assigned to positions identified as having duties that include truck dnving requiring DOT Certification, in addition to other regular duties. Individuals assigned to such positions must possess necessary DOT Certification as a qualification far such position. The agreement to allow this differential is based on the acknowledgment of a new and additional skill level, not normally required of laborers, welders or carpenters.
Employee operating vehicles that require a CDL license will be paid a differential allowance of fortyfive cents (.45) per hour...
Other than the Vehicle Operator class as employee who may be assigned to operate a vehicle which requires CDL will receive 3.30 per hour in addition m their regular rare for the entire work day.
Vehicle operators will be the only job clan: required to obtain and maintain CDL qualifications. However, some positions may be required to obtain CDL and/or FHWA certification based on vehicle assigned. In this event, Sections 1 and 2 of this rule will apply.
This will confirm our understanding regarding the payment of a differential for the requirement of a Commercial Drivers License of employees.
A position that necessitates that the driver of a vehicle possess a Commercial Drivers License will receive an additional ten (10) cents per hour, effective December t, 1996.
1.) All employees under the jurisdiction of the BMWE Agreement that are required to obtain and maintain a Commercial Drives License (CDL), will receive an additional fifteen (15) cents per hour pay increase on all hours worked.
2.) The employee required to obtain and maintain a CDL and assigned as the primary driver of the vehicle will receive an additional thirty (30) cents per hour pay increase on all hours worked. This is not in addition to the 15 cents in paragraph 1.
Other than the Vehicle Operator class an employee who may be assigned to operate a vehicle which requires CDL will receive 5.30 per hour is addition to their regular rate for the entire work day.
There also has been much disagreement between the parties concerning the relevance and weight to be accorded the truck driver rate increases contained in the August 1993 Unior PacificBMVX -- Agreements (two separate agreements dated August 16, 1993 and related sic
Employes who are required to obtain CDL's on GTW fall into two broad groups: ( l ) approximately ten (10) full-time truck drivers whose primary work is to drive trucks with equipment accessories such as log loaders, boom trucks, dump trucks, etc.; and (2) another estimated 45 positions, such as hack foremen, trackmen, B&B foremen, carpenters, welders and welder helpers, who occasionally drive CDL-mandated vehicles incidental to the regular work of their classes. As of 1998 the GTW (proper) had 6 dump trucks, two log (material handling) trucks, one semi-tractor trailer and two fuel trucks which require FHWA certification and a CDL licensed driver. (The record does not show whether GTW has other CDL-mandated vehicles and contains no information at all about the truck fleet on the former D&TSL and DT&I properties).
Under the GTWfBMVJE Agreement, trucks in the first group come under the category of "Class 2 Track Department Group C" machines listed in Rule 1 as follows (Emphasis added):
For many years under the GTWBMWE Agreement, the compensation of drivers of such "Class 2 rated" trucks ($17.03 per hour, effective January 1, 1999) has been supplemented with a fifty (50) minute daily "arbitrary" or bonus payment ($14.13 per day, effective January 1, 1999).
Rule 15 of the current GTWBMWE Agreement had its genesis in a Memorandum of Agreement dated August 1, 1968, applying the provisions of the Award of Arbitration Board 298, dated September 30, 1967. That Memorandum of Agreement, which now appears as Appendix G in the May 18, 1998 Schedule Agreement reads in pertinent part at Section III, Item 2 as follows:
Unlike the classification rules and rates of pay provisions set forth in many other such agreements, Rule I and Appendix R of the GTWBMWE Agreement signed May 18, 1998 contain neither a specific pay rate nor separate seniority classification for "Truck Driver" or "Vehicle Operator". The hearing record before me contains countervailing assertions but no evidence other than the above-quoted "Papa Letter"conceming whether or to what extent drivers of CDL-mandated trucks on GTW, other than those expressly listed in Rule 1, supra, receive the Class 2 machine operators rate and the associated Rule 15/Appendix G fifty (50) minute arbitrary payment. In that connection, in its initial submission, at page 5, GTW asserted that "all of these [CDL-mandated truck driver] positions are paid the Class 2 rate for CDL certified work ....in addition, employees working tinder the Grand Trunk Schedule receive a 50 minute arbitrary at the same rate". That statement is directly contradicted in the BMWE rebuttal submission, which asserts at page 9: "While the 50 minute arbitrary is afforded to employer assigned to trucks with equipment accessories listed in Class 2 (boom, grapple, log and dump trucks, etc.), it is W afforded to other employer who drive large gang trucks that require CDL's" (Emphasis in original). From all of this, I conclude that under the GTWBMWE Agreement approximately tea (10) full-time drivers of CDL-mandated trucks are classified, bulletined and paid as Class 2 machine operators, which entitles them to be paid the Rule 15/Appendix G arbitrary. However, approximately forty-five (45) other GTWBMWE Agreementcovered employees who are required to possess a CDL for "casual" or "irregular" driving of CDLmandated trucks are not classified, bulletined and paid as Class 2 machine operators and thus do not receive the 50 minute arbitrary under Rule 15/Appendix G.
CDL applicant: must demonstrate the skill to operate large, heavy vehicles with complex shifting mechanisms and sophisticated air brake systems in a wide variety of road, traffic and weather conditions. -
Employee assigned to positions requiring a CDL are required to assume supervisor-like responsibilities with potential loss of livelihood and criminal penalties for failure to comply.
There is no objective justification for concluding rite CDL requirement justifies a 30 cents per hour differential Given the current high rates of pay, a differential clearly is not warranted. Nonetheless, if the Arbitrator were to determine that a differential should be paid across the board, he should also say, as a matter of fairness and equity, that the payment is made in lieu of the 50 minute arbitrary. In the abstract, the Carrier would rather that it not pay such an expensive arbitrary as the S 14.13 it already pays for the CDL. However, we feel if one is paid it should not exceed the small railroad payment of 10 cents per hour as is now being paid on the Texas Mexican Railway. Moreover, such payment should not include additional general wage increases or the complications of a COLA formula and should be limited to straight time hours actually worked. Finally, the differential should not be included in any time paid and not worked such as penalty claims, vacations and holidays.
As we have repeatedly shown, the Board should deny rite Union's request for additional compensation for the following reasons:
Collective bargaining is about drawing limits. From the Union perspective, the worst possible outcome is to leave something they could have obtained on the table. Therefore, inherent in the process is a Union's vigorous testing of the limits to assure nothing has been left behind. A denial award in this case says nothing more than tire Union did the very bestjob. Nothing is left on the table.
Most arbitrators would agree that establishing wages or writing contract language for adversarial parties is a daunting and disquieting responsibility. In my considered judgement, no matter how well-informed or well-meaning an independent impartial arbitrator might be, the mutual interests of the Parties are always better served by negotiating and agreeing on their own contract terms. However, since these Parties were unable to achieve a meeting of the minds on the CDL differential issue in negotiations, I must now conscientiously exercise the interest arbitration authority with which they have entrusted me in Side Letter #5. In performing that task, it is well to bear in mind that the interest arbitrator as contract writer stands on a different footing than the grievance or rights arbitrator who functions as contract reader. The interest arbitrator serves more as a fiduciary for the Parties, with the responsibility to make a decision that best reflects what they would have done themselves had they been able to overcome the barriers which divided them and reached a voluntary agreement.
Achievement of closure by interest arbitration where the Parties have proven unable to do so voluntarily is possible primarily because the disinterested and impartial arbitrator is better able to objectively analyze and impersonally weigh the evidence of record with respect to established criteria--essentially the same criteria which the Parties themselves utilize in bargaining. In that connection, it is generally recognized that the most prevalent standard used in interest arbitration of wage disputes is "prevailing practice" and this is especially true in certain industries. It can hardly be gainsaid that the establishment and promulgation of industry patterns has been a hallmark of collective bargaining in the railroad industry for countless rounds of bargaining under the Railway
More particularly, in interest arbitration of issues like the CDL differential dispute presented in these proceedings, the most commonly used standard guiding arbitral judgement is whether and to what extent increased knowledge, skill and responsibility justify payment of a wage differential. See Elkouti & Elkotui, 4' edition, 1985, pp. 804, 813-14. The Elkottris expounded further on these primary tenets at pages 1102 and 1103 in the 5`° edition (1997) of their treatise, as follows:
As the moving Party seeking to achieve arbitral endorsement of its bargaining proposal for a CDL differential on GTW, (inclusive of D&TSL and DT&I), the BMWE bears the bears the burden of persuasion by a preponderance of probative record evidence. In my considered judgement, the Organization has shown on the record before me a growing recognition in the industry that such a differential is warranted because attainment, retention and utilization of a CDL by an employee requires demonstrable increases in the individual's knowledge, skill and responsibility on the job. In that connection, the present record requires my concurrence with the following observation by Arbitrator O' Brier in PLB 5542-Award No.2:
In Arbitrator O'Brien's judgement, the primary justification for paying employees a CDL differential is that attainment and utilization of a CDL "does increase an employee's responsibility ...due to the extensive Federal Regulations governing operation of a Commercial Motor Vehicle." Indeed, that conclusion is convincingly supported in the record before me by simple reference to pertinent sections of the Federal Motor Carrier Safety Regulations in 49 CFR, Parts 390, 392, 395, 396 and 397, §§ 390.3(e)(2), 392.7 through 392.9, 395.8, 396.11, 396.13, and 397.1, as follows:
(1) The vehicle's cargo is properly distributed and adequately secured as specified in §§393.100-393.106 of this subchapter.
(2) The vehicle's tailgate, tailboard, doors, tarpaulins, its spare tire and other equipment used m its operation, and the means of fastening the vehicle's cargo are secured; and
(3) The vehicle's cargo or any other object does not obscure the drivers view ahead or to the right or left sides, interfere with the flee movement of his arms or legs, prevent his free and ready access to accessories requited for emergencies, or prevent the free and ready exit of any person from the vehicle's cab or driver's compartment.
(b) Drivers of trucks and truck tractors. Except as provided in paragraph (b)(4) of this section, the driver of a track or truck tractor must-
"(1) Assure himself that the provisions of paragraph (a) of this section have been complied with before he drives that vehicle;
(2) Examine the vehicle's cargo and its load-securing devices within the first 25 miles after beginning a trip and cause any adjustments to be made to the cargo or load-securing devices (other than steel strapping) as may be necessary to maintain the security of the vehicle's load; and
(3) Reexamine the vehicle's cargo and its load-securing devices periodically during the course of transportation and cause any adjustments to be made to the cargo or load-securing devices (other than steel strapping) as may be necessary to maintain the security of the vehicle's load A periodic reexamination and any necessary adjustments must be ;made
(4) The rules in this paragraph do not apply to the driver of a sealed vehicle who has been ordered not to open it to inspect its cargo or to the drive of a vehicle that has been loaded in a manner that makes inspection of its cargo impracticable.
(c) Buses. No person shall drive a bus and a motor carrier shall not require or permit a person to drive a bus unless
(1) All standees on the bus are rearward of the standee line or other means prescribed in §393.90 of this subchapter.
(3) Baggage, freight, or express on the bus is stowed and secured in a mariner which as sure
(iii) Protection of occupants of the bus against injury resulting from the falling or displacement of articles transported in the bus.
[36 FR 18863, Sept 23, 1971, as amended at 37 FR 12642, June 27, 1972; 38 FR 23522, Aug. 31, 1973]
(a) Every motor cagier shall require every driver used by the motor carrier to record his/her duty status for each 24-hour period using the methods prescribed in either paragraphs (a)(1) or (2) of this section.
( I ) Every driver who operates a commercial motor vehicle shall record his/her duty status, in duplicate, for each 24-hour period. The duty status time shall 6e recorded on a specified grid, as shown in paragraph (g) of this section. The grid and the requirements of paragraph (d) of this section
may be combined with any company forms. The previously approved format of the Daily Log, Form V1CS---59 or the Multi-day Log, MCS--l39 and 139A, which meets the requirements of this section, may continue to be used.
(2) Every driver who operates a commercial motor vehicle shall record his/her duty status by using an automatic on-board recording device that meets the requirements of §395. I S of this part. The requirements of §395.8 shall not apply, except paragraphs (e) and (k)(1) and (2) of this section. (b) the duty status shall be recorded as follows:
(c) For each change of duty status (e.g., the place of reporting for work, starting to drive, onduty not driving and where released from work), the name of the city, town, or village, with State abbreviation, shay be recorded.
NOTE: If a change of duty status occurs at a location other than a city, town, or village, show one of the following: (1) The highway number and nearest milepost followed by the name of the nearest city, town, or village and State abbreviation, (2) the highway number and the name of the service plaza followed by the name of the nearest city, town, or village and State abbreviation, or (3) the highway numbers of the nearest two intersecting roadways followed by the name of the nerest (sic) city, town, or village and State abbreviation.
(e) Failure to complete the record of duty activities of this section or §395.15, failure to preserve a record of such duty activities, or malting of false reports in connection with such duty activities shall make the driver and/or the tamer liable to prosecution.
(f) Hazardous materials knowledge, such as: What constitutes hazardous material requiring an endorsement to transport; classes of hazardous materials; labeliag/placardiag requirements; and the need for specialized training u a prerequisite to receiving the endorsement and transporting hazardous cargoes.
(3) Implications of severed or disconnected air lines between the power unit sad the nailer(s);
(6) Procedures for conducting enroute and post-nip inspections of air actuated brake systems, including ability to detect defects which may cause the system to fail.
.. (1) Coupling and uncoupling-Ile procedures for proper coupling and uncoupling a tractor to semi-trailer.
(2) Vehicle inspection-The objectives and proper procedures that are unique for performing vehicle safety inspections on combination vehicles.
(a) Basic vehicle control skills. All applicants for a CDL must possess and demonstrate bait motor vehicle control skills for each vehicle group which the driver operates or expects to operate. These skills should include the ability to start, to stop, and to move the vehicle forward and backward in a safe manner.
(b) Safe driving slaps. All applicants for a CDL must possess and demonstrate the safe driving skills for their vehicle group. These skills should include proper visual search methods, appropriate use of signals, speed control for weather and traffic conditions, and ability to position the motor vehicle correctly when changing lanes or turning.
(c) Air brake skirls. Except a provided in §393.95, all applicants shall demonstrate the following skills with respect to inspection and operation of air brakes:
(1) Pre-trip inspection skills. Applicants shall demonstrate the skills necessary to conduct a pre-trip inspection which includes the ability to:
(ii) Determine the motor vehicle's brake system condition for proper adjustments sad that air system connections between motor vehicles have been properly made and secured;
(iii) Inspect the low pressure warning devices) to ensure that they will activate in emergency situations;
(iv) Ascertain, with the engine running, that the system maintains an adequate supply of compressed air;
(v) Determine that required minimum air pressure build up time is within acceptable limits and that required alarms and emergency devices automatically deactivate at the proper pressure level; sad
When all is said and done, the BMWE has amply demonstrated on the record before me that a CDL pay differential is warranted by the increase in skills and knowledge which are required of an employee to obtain and retain a CDL and because of the added responsibilities which are required of such an employee under the applicable cited Federal regulations. That is not a novel notion, as demonstrated by the O'Brien Award and by a growing list of small, mid-size and large individual carriers who have agreed to some form of CDL differential in voluntary collective bargaining with the BMWE.
It is true that a majority of the nation's rail carriers, notably those involved in national level bargaining with the BMWE through the NCCC, did not agree to pay a CDL differential in the most recent National Agreement growing out of the recommendations of PEB 229. However, a significant sampling of small, mid-size and large individual carriers have voluntarily agreed to some form of a CDL differential, both before and after Recommendation No. 29 of PEB No. 229 and the resultant National Agreement. Contrary to GTW's stated position that only small fringe carriers have voluntarily agreed to pay a CDL differential, major carriers as CSXT, Norfolk Southern and Union Pacific currently pay some form of CDL differential under their most recent agreements with the BMWE. One does not find here an industry-wide pattern, but the evidence of record does support BMWE's position that a growing number of rail carrier's have agreed that payment of a CDL differential is appropriate.
Regarding "major" Carriers, the CSXT/ConraiIBMWE Implementing Agreement of March 23, 1999 contains the identical CDL provision which BMWE first bargained with the IHB in November 1996, Under the NSR-ConraiIBMWE Implementing Agreement of May 6, 1999, specified employees also receive a $.30 CDL payment, albeit the core group of NSR-Conratl employees who receive the CDL differential is distinctly more restricted than under the CSXTConrailBMWE Implementing Agreement. Under the Union PacificlSMWE Agreements and related side letters of August 16, 1993, the Truck Operator positions afforded rate increases under the
Those August 16, 1993 agreements identified specific positions that would require CDL qualifications and conditioned incumbency on holding a valid current CDL, established grace periods and time fi-ames within which employes should become CDL qualified, provided that the
UP would assist employee in becoming qualified based on written requests, stipulated that the UP would reimburse employee for acquisition or renewal of CDL's and provided for the above-quoted pay rate increases for various newly established Truck Operator positions in the Bridge and Building and Track Departments. As Arbitrator O'Brien pointed out in PLB 5542, Award No. 2, supra. however, it is not possible to put a precise valuation on the CDL differential component of the wage package for the new "Truck Operator" positions created is those agreements.
Bargaining for these contracts was initiated in March 1991 in anticipation of the April 1992 effective date for the DOT's uniform CDL standards and continued in that context before final closure in August 1993. In countervailing affidavits placed in evidence before PLB 5542, PEB 229 and this Arbitrator, the chief negotiator of those contracts for UP attempted to minimize the CDL factor while his BMWE counterpart attempted to maximize the impact of CDL on the August 1993 wage rate increases. The record before me shows that throughout those bargaining talks the chief negotiators for both BMVJE and UP frequently emphasized the CDL standards, among other reasons, for negotiating changes in Truck Operator requirements and wages. For example, UP draft proposals presented to BMWE on July 29, 1992, May 14, 1993 and May 17, 1993 each contained the following preamble (Emphasis added).:
Toward the end of the talks, however, the UP negotiators insisted on substituting for earlier prefatory language specifically linking part of the rate increases to CDL/FHWA requirements the following elliptical references: "...significant change necessitating qualified employees" and
"...necessary licenses and certifications to be eligible for promotions to a truck operator assignment in the Maintenance of way Department". While attribution of a discreet monetary figure to CDL is not possible, the record before me plainly demonstrates that both the UP and BMWE negotiators mutually intended that at least part of the significant rate increases over former truck operator rates was in recognition of employees obtaining, maintaining and utilizing the CDL required to drive certain vehicles.
Base on all of the foregoing, I must answer Question No. 1 in the affirmative. As to Question No. 2, I can find no good reason in this record to deviate from the 5.30lhourly differential established by Award No. 2 of PLB 5542 and endorsed by most of the negotiated agreements to date. GTW counters that it already pays some of its vehicle operators a de facto CDL differential of $1.766 per hour, in the form of the Rule 15/Appendix G "arbitrary", as recounted in the December l8, 1998 "Papa Letter", supra. On that basis, GTW urges that an arbitral award of any CDL differential would be superfluous, unfair and inequitable. However, the record evidence falls far short of supporting the theses that Mr. Papa unilaterally extended the Machine Operator's rate and associated Rule IS/Appendix G arbitrary payments to dump truck drivers on and after April 1, 1990 in gratuitous recognition of their attainment of the CDL requirement. To the contrary, the evidence shows that the express language of Rules 1 and IS/Appendix G of the GTWBMWE Schedule Agreement clearly, unambiguously and specifically mandates such payments to drivers of "Class 2" trucks "for servicing their machines during their tour of duty". (Emphasis added).
Arbitrators and courts alike presume that understandable language means what it says, despite the contentions of one of the parties that something other than the apparent meaning was
32 intended. Independent School Diet No 47, 86 LA 97, 103 (1985) (Gallagher). Even when the parties to an agreement disagree on what contract language means, an arbitrator who fords the language to be unambiguous will adopt its plain meaning. See, e.g., Safeway Stores, 85 LA 472, 476 (1985) (Thorp); Metropolitan Warehouse, 76 LA 14, 17-18 (1981) (barrow). This rule is both practical and equitable because; I) it brings order to contract construction by eliminating as a viable subject for dispute exquisitely clear contract language such as that contained in Rule I S/ Appendix G; and, 2) when language is so crystal clear and unambiguous both parties to a contract are presumed to have understand how they were bound when they executed the contract.
For all of the foregoing reasons and after full consideration of all of the record evidence, in the exercise of the jurisdiction and authority vested in me by the Parties pursuant to Side Letter No. 5, I conclude that BMWE persuasively demonstrated that a $.30/hourly CDL differential, subject to applicable COLA adjustments, should be included in the GTWBMWE, D&TSLBMWE and DT&IBMWE Agreements.