Emithors, the Authority'w Director of Transportation Personnel] on February 13, 1995 for Engineer J. C. Re2:uck Acat. # 867352 to provide OJT training to (Engineer-Trained] Dennis Whaley" (BLE-95-014-T2)
"Protest on behalf -of all BLE.Members -issued directives by [Mr. Smithers] to provide WT training to Engineer Trainees." (BLE-95-Oa.i-T2)
The disputes come to this Board pursuant to Sec. 402 of the collective bargaining Agreement dates August 14, 1991 (the "Agreement"j between the Parties. The Agreement became emendable on duly 14, 1991; and the organization filed notice under section 6 of the RLA, seeking to amend the Agreement. The Parties have riot successfully concluded negotiations for a new Agreement; and the dispute resolution procedures of RLA have not yet been exhausted. The kLA requires, as a general matter, that parties maintain the status quo during the dispute resolution process. It is not disputed that the obligation to maintain the -A,t?Ltus auo was in effect when the Authority ordered Engineers covered by the Agreement to provide on--Job Training ("OaTll) to Engineer-Trainees.
The Organization protested the Authority's actions, asserting them to violate its obligation to maintain the status au o. It sought in Federal Court to declare the actions violative of Sec. 6 of the RLA and to enjoin the Authority from requiring its members to train Engineer-Trainees. The United States District Court for the Eastern District of Pennsylvania in Brotherhood of Locomotive );sgineers, Ger3qr.a1 tCammittaa, ak:YTA v. Thomas Iiay-ward, C.A. 95os74, determined the dispute to be "minor" within the meaning of Sea. 3 of the RLA, making it subject to resolution through the
Agreement's negotiated grievance procedures, ac the Authority had urged. On that basis, the court denied the Organization's requests for injunctive relief. The Court retained jurisdiction over the disputn, pending arbitration. The Organization than pragracccd tile claims under those procpdurac; and, by agreement, the Parties preaantod thorn to this Board on an expedited basic.
In accordance with the proeedurec used by the Parties, they filed Pro-Hearing Eubmissiona and then prcucntcd witnecncc, who prevented sworn testimony on areas in disputes. Additional documents referred to in the testimony were offered and received. The Authority was grantee permission to submit ztn-additioDal Brief on the status and use of the Transcript of the court proceeding, to which the Organization made an oral response.
The history and circumstances surrounding this dispute were presented in those written submissions and by organization witnesses Thomas C. Brennan, formerly the Organizations Local Chairman and later a Legislative Representative and Assistant to the President of the International Organization, and Joseph A. Cassidy, Jr., Vice-President of .the international organization, and by Thames M. Webb, the Authority's former Chief Industrial Relations Ofrzcer, Robert R. Smithers, the Authority's Director of Transportation Personnel, and John v. Pin, formerly the Authority's Director of Manpower and. Labor Relations for the Railroad Division.
Based on the undisputed feats presented in the pre-hearing submissions of the Parties, the post-hearing .submission o£ the Authority, the exhibits attached to the submissions, other exhibits received into the record, the sworn testimony of witnesses offered by each Party and cross-examined by the other Party with respect to disputed facts, and the oral arguments of the Parties, the Board makes the following factual findings, summaries of the positions of the Parties, analysis and conclusions:
The Board notes at the outset that, in the Transcripts of Bearings before the Court which were presented to us and received into the record, the Parties and the court discussed the applicability and interpretation of certain provisions of the Agreement which are-at issue in this proceeding.. Those discussions were held in the context of the dispute than before the Court and without the benefits of the hearing and argument, presented to this Board. While some of the statements of Party representatives in the Court proceeding touched on matters before this Board, Authority
statoments. The comments of. the Judge concerning interpretation o£ the Agreement overlap thin Roard's jurisdiction. 2riey were made without benefit of the raoord before thin Board. Accordingly, the Board's inquiry with raepact to those issues is conducted de novo, wiLhaut giving woight to the discussions in the prior Court proceedings.
The Authority provides commuter transportation, including "hoavy" rail Eervicoe, to thn Philadolphia, Pennsylvania area. It was formed in 1223 to assume the cordmutcr dpora£'iona of Conrail and' its predecessor carriers.
The Organization represents certified locomotive engineers ("Engineers") employed by the Authority. Individual Claimant Rebuck is employed by the Authority as an Engineer.
it is not disputed ~that, under Authority rules and under Federal Railroad Administration. ("FRA") regulations in effect since 1991 (49 CFR Part 240), no train may be operated except by a qualified Locomotive Engineer., To become qualified, EngineerTrainees must complete various aspects of training, part of which consists of on-the Job `training ("OJT") conducted in the nabs of locomotives as they era operated aver the railroad by qualified Engineers, OJT includes familiarization with' equipment and physical characteristics and familiarization with train-handling, including allowing the Engineer-Trainee to operate trains under the supervision of the trainer.. The Authority's PRA-approved training program takes 38 weeks or longer to complete.
The Authority has an ongoing need to train new Engineers, partly to replace those lost through normal attrition and partly to replaces Engineers who leave the Authority to take better-paying jobs on other Carriers. The Authority's prior efforts to retain Engineers have not. been sufficient. It is conceded that the Authority has fewer Engineers than it needs, requiring Engineers to work six day weeks. and reducing the number of "extra" Engineers and rc::.e.rva Rngineets. For all that, there is no proof of instances of curtailed service resulting from Engineer shortages. However, the need for additional Engineers is not disputed.
Since the Authority's inception in 1983, all Engineer training except 0,7T has been conduetcd by Rules instructors, who are nonbargaining unit employees of the Authority. Approximately 21 currant managers, including some Rules Instructors, are qualified engineers. However, with only certain limited exceptions noted below, all OJT has been conducted by Engineers.
Although t ho Parties dispute the extent of the burden which OJT placao on Engineers, it is not contested that training represents an additional responsibility beyond that noce3sary to oporate trains. The organization complains that, under FRA Regulations, Engineers may be held responsible for operating errors made by trainees subject to their oversight, with consequent risk to the training Engineers'"certifioatioms:~. '
Labor relations between the Authority and the Organization began with a 108 day strike in 1983, following the Authority's assumption of commuter rail services which had been performed by its predecessors. At issue in the strike were a number of issues, including wages. '
The Agreement which was eventually reached left the Authority's engineers paid .at lower rates than on most other carriers. A number of engineers exercised their Plow-back rights or applied for jobs elsewhere; and the Authority was left with a shortage of engineers. It hired engineers from a number at sources, including some "off the street".
The Authority's new Engineer-Traineess required training, including OJT; and the Authority asked Engineers to perform the training. However, the Agreement which had been negotiated contained no provision covering training, it did contain the same recognition, management functions and emergency conditions work assignment clauses which appear in the present (1991) Agreement.
The testimony is in conflict whether Engineers provided training during the period immediately following the strike: Mr. Brennan testified that he was instructed to,tell Engineers to accept trainees, but that ha refused and Engineers provided no OJT. He testified that the Authority trained some Engineers "on its own". Mr. Smithars testified that he understood that Engineers did provide training during the period, while Mr. Po, who was present during the period, acknowledged that they "flat out refused". T conclude that Engineers did n2t perform OJT during that period, despite requests that they do so.
The Cido Lotter oontinuod to apply through', tho emendable date of the 1984 Agreement and until a new Agreement was reached in 1988. As part of that Agreement, the 1984 Side better was renewed. Insofar as the record indicates, Engineers who performed oJT for Lngineer-Trainees pursuant to the Side Lector were allowed to refuse the duty and were duly compensated. for OJT provided throughout the period the side Letter was in effect. Mr. Pic, acknowledged that 1180V" of the problems involving performance of OJT by Engineers disappeared following execution of the Side Letter. .
The Side Letter continued in force until the 1991 Agreement. Part of the 1991 Agreement, reached only after some delay, provided, in Appendix A, for payments made on the basis of several categories of performance. The ray for parformanc ("PFP") program was intended to provide Engineers with additional income over and above base wages and allowances in return for improvements in individual performance, Nervicc to the public and cost reductions.
one separately-negotiated portion o£ the PFp program provides for designation of "Engineer-Tnstructors" and. provides for_payments to Engineers who mat the qualifications, who volunteered to serve and who were appointed. -The requirements :included five. years of service as a SEPTA Engineer and 95t attendance.
Eligible Engineers who volunteered were paid in equal proportions, pro rata on the basis of months of eligibility, from a special PFP Fund (the "YFY fund") of $150,000 for 1992 , another $150,000 for 1993 and a final disbursement of $75,000 for 1994. The PFP Fund expired, by its terms, on July 13, 1994, one day prior to the emendable date of the Agreement.
Witnesses for both sides confirm that the expiration date of the Fund was at the insistence of the Authority, for the purpose of having the PFn Fund pest become a part of the "status au o" following the emendable date. Mr. Webb, who did not participate in the negotiations, testified that he understood that the payments from the PHY Fund were separate from the obligation of Engineers to perform training and that the obligation survived and continued after the PFP Fund expired.
Authority witnesses Wmbb and Smithers testified that the PFP Program was not successful. 'they complained, in particular, that hiring restrictions and budget freezes limited the number of Engineers trained during the period covered by the kFY Fund to two. They asserted, an that basis, that the Enginoor-Instructor compensation provision was ~not cost-effective.
The organization asserted, and Mr. Webb confirmed, that the 1991 Agreement had included a change in the progression rate for new hires to delay' advancement from five to thren by 18 months. The Organization also asserted, and the Authority did not refute, the fact that the savings from that change in the progression rats had specifically been earmarked for the PFP Fund. It contended that bargaining unit employees had, therefore, "paid for" the PPP Fund, an assertion disputed by the Authority.
The organization did, in fast, carve on the Authority a Notice Under Sec. 6 of the RLA on August 17, 1993. Included in the organization's proposals for change to the Agreement was the addition of is new Sec. 104 of the Agreement (Duties of Engineers), which would provide, in part:
The Organization's proposals for the new Section have not been adopted. Negotiations have continued for a new Agreement, so far without successful conclusion. During the pendency of negotiations, the RLA requires that the status auo between the Parties be maintained.
In addition to its regular, ongoing attrition, the Authority in 1993-91 anticipated additional losses as other carriers increased hiring, Beginning in 1999, the Authority hired trainees for engineer positions and began to progress them through the steps of the training program.
After the period covered by the PFP Fund expired, Eriginaars ceased to volunteer to train Enginoor-Trainooe. Despite the urgingN of the operating Department, the Authority at first decline-d to force Engineers to conduct training, on tho theory that volunteers era more affective at training and because, as Mr. Webb tosLlCi.ed, the Engincoru were already upset at working without a contract, the negotiations were at a delicate stage and ha did trot wish to add another issue to the bargaining.
In the Fall of 1994, Mr. ,fimithers approached certain Engineers individually and offered to pay them additional movies to perform OJT. The Organization protested the unilateral approaches, and the Authority ceased Its efforts.
In October and November ,of 1994, four`named Student"Engineers completed sufficient training that they were ready for OJ'f. '1'he Authority utilized non-bargaining unit Rules Instructors who were qualified Engineers to perform the limited amount of OJT which was immediately required. However, the Rules Department warned that there was a large class of Engineers - on the order of 35-40 - who were coming throught the training "pipeline" and would require OJT in late 1994 or early.1995 and-'that the training would exceed the capacity of the Rules Instructors to provide. It contended that delays in completing their training would be costly and inefficient.
The Parties had been negotiating .on the several issues which divide them, but undertook separate negotiations in January of 1999 in attempts to resolve the training issue._ It is not disputed that the Authority successively offered to py engineers who perform training an additional allowance of $.35/hour, $.50/hour and $1.00/hour. However, the organization insisted in the negotiations that x.11 Engineers eligible to perform training receive the training allowance, regardless of whether they era actually performing training. The negotiations were unsuccessful.
The Authority's Determination
to order Engineers to Perform Training
Finally, in February of 1995, another Engineer-Trainee was released for OJT. ;The Authority determined not to hold back any longer on its asserted right to force Engineers to perform training. On February 13th, Mr. Smithers ordered Claimant Rubeak to train an Engineer-Trainee during the course of his regular assignment. At other times in February and thereafter, it gave similar ordorc to. other Engineers. insofar as the rnonrd
The organization thereupon filed --uit in Federal Court. Baead on the court's determinations, the Portico then invoked this Board's jurisdiction. This proceeding followed.
violated the 1991 collective bargaining agreement and the status c;uo under sec. 6 of the Railway Labor Act, 45 Uu^C sec;. 156, when it directed qualified engineers, including Claimant Rebuck, to provide on-the-job training to EnginccrTrainoco, beginning in February, 1995.
The organization arguoc that the work of training students iC recognized work of kngineers. It points-out 'that all OJT provided by L;ngineers prior to the events at issue in this proceeding was pursuant to the negotiated Side Letter, as'sxtended, and, later, pursuant to Appendix A. The organization points out that both specifically provided that Engineers had the right to refuse to act as instructor.
The organization points out that the Authority never previously asserted the right to compel Engineers to perform OJT: from January of 1983 .through allly of 1984, there was a need for training, but not until the side Letter was agreed to did engineers provide training or the Authority ask them to do so. It asserts that Mr. Smithers' testimony to the contrary was. hearsay and should be discounted as against the other testimony: .The organization also points out that from July of 1993 until February of 1995, a similar situation existed; again, the Engineers refused to vuluuLeer for OJT; and the Authority did not compel them to perform the training.
The Organization argues that Agency reliance on Appendix A as the source of. the Authority's right undercuts its ability to rely on the body of the Agreement. Further, the union points out that the Authority's position that the PPP Fund expired, but the duty did not is contrary to both the history between the Parties and the fact that the carrier did not act consistent with the survival of the duty by requiring uncompensated training. It asserts, in addition, that the Authority's interpretation would negate the volunteer provision of the Appendix.
The organization argues that the inclusion of training duties in Appendix A of the 1991 Agreement does not create or recognize a duty to train as part of Engineers' regular duties. It points out that Engineers have no separate "duty" to maintain 95x attendance, reduce on-duty injuries, maintain a clear record, reduce train service pasts, reduce accidents or increase on-time performance. It contends, instead, that training engineers is a function of compensation.
With respect to the Authority argument that it hen the "management right" to ano3gn the worn under Rule 1003 of the Agreement, the Organization points out that the Agreement preserves only management "funetionw", not "rights". It nrgucN, in addition, that management rights am compromised under law to the extent that isauca era cubjactnd to collective bargaining and the r®quirwmant of the RLA that Parties make and maintain agreements; and it asserts that the iscuo of training has, in feat, been addreccod through bargaining, not as a racerv®d right of management.
The Organization points out, in any event, that only rights not expressly modified or restricted are retained .by management under Sec. 1003. It assorts that Sea. 502 tej restricts the Authority's rights to assign work beyond-an Engineers "normal assignment", absent emergency or exceptional circumstance. It urges that the shortage of Engineers which the Authority seeks to alleviate by requiring OJT has existed throughout SEPTA's history and does not constitute an emergency or exceptional circumstance.
The organization contends that there has been no showing, as is required, that existing manpower is inadequate to provide present service or that there is any plan to increase service. It points out that SEPTA was able to provide for additional service and capacity during the recant TWU strike and that the Authority's projected budgets anticipata.no expansion of service. Thus, the organization contends that, even if this Board were to find that the work is "Engineer's work", the Authority's ability to assign work is still restricted by sec. 502 (ej; since the Authority did not meet the tests of that Section, it is still restricted from compelling Engineers to perform 03T.
The organization also argues that sec, 509 (c)(4) of the Agreement does not apply to non-bargaining unit employees and that it relates to employees trained, not those who perform training. It also asserts that sec. 1004 is inapplicable, since training does not, by any plausible interpretation, "improve productivity".
The organization denies that its Section 6 proposal to establish a new "Duties of Engineers" provision constitutes an admission that those duties are not presently limited. It asserts that the proposal merely represents an effort to define and clarify the work of Engineers so as to avoid the type of problem at issue in this proceeding and not a concession that the duty to provide OJT is a part of Engineers' regular duties.
in response to Mr. Pie's testimony that former General Chairman Riley said that the Organization would "see to it" that the Authority got enough volunteers, the organization contends that
the Organization'a accurances meant only that: the organization would try to convince engineers to do the work, not. that the Authority has a right to rurca Engineers to do such work.
The Organization disputes the Authority'; assertion that it "paid in advance" through the PPP Fund for Engincors to continue to perform OJT until a new Agreement is reached. xt arguac that the PFP Fund utilized to pay Engineer-Instructors waG octablisha$ separately from the other PPP programs and was funded by restructuring the pattern agreement (App. B) to delay wag,' progression Eor new hires by 18 months, thin paying for the fund from marries otherwise part of the patter-n --settlement.. The Organization contends that it is the other portions of App. A - not training - that were'intended to generate savings.
The organization points out that the $.5o/hour payment provided for in the 1984 Side Letter was prior to the FRA certification requirements. It asserts that the increase in manias provided for in the issl Agreement reflect the increased risk. It asserts that Engineers have been afraid to provide training because of jeapordy to their certification. It contends that the money serves to encourage bargaining unit members to accept the risk, rather than to compensate them for perfvrminy the actual task o£ training. The organization argues that a $1.0o/hour to all Engineers would be sufficient to entice them to volunteer. It points out that theiincentive.is not a "new" cost to the Authority, representing as it does movies diverted to the P FP Fund from other sources. The organization asserts that the allowance must go to the entire unit and contends that a $.5o/hour stipend confined to those Engineers who perform training is a step bank.
The Organization urges that the issues belongs at the negotiating table; and it complains that the Authority's mandate to Engineers to perform training improperly removes it from bargaining. It argues that the dispute is appropriately resolved in bargaining, as it asserts the issue has been resolved between the Parties throughout their relationship. The organization asserts that the duty cannot be. imposed on them in the absence o$ an agreement.
The Organization points to the testimony of Messrs. Brennan and Cassidy that it'is not the practice on other properties in the absence of a training agreement.
The Organization argues that the transcript of the Court proceeding should be considered by the Hoard, even though it also concedes that this a de novo hearing, because, it asserts, the transcript contains representations by the Authority, including
incOnsistnnca es between its powition there and here, which are relevant to the issues in this proceeding. It also urges that the transcript provides statemanLn by the Judge which provide his thinking on matters including whether there has bean d contract violation and of what cections_
'fhe Organization argues that the claims -should bet sustained, that the krvard find that the Hoard declare the Authority's requirement. to be violative of the Agreement, and that the Authority be ordered to pay a basic day's pay (eight hours) for each tirue the Authority has ordered an Engineer to provide OJT to xngineer-Trainees. It contends that such penalty, is permissible and that it is necessary to remedy requiring work outside the normal stops of an Engineer's duties,., even when payment has been waded, and to deter continuing violations.
The authority argues that its instructions to Engineers to provide OJT to Engineer-Trainees beginning in February of 1995 did not violate the Agreement or its status quo obligation. It asserts that the instructions were consistent with the history on the property and in the industry of Engineers performing such duties. It asserts that the organization is alleging that the Authority has violated the Agreement; and it contends that the Organization railed to meet its burden of proving such a violation.
The Authority argues .that the availability of the PFp Fund served simply as an inducement to make it unnecessary to compel Engineers to serve as instructors. It points out that the Fund expired, by its terms, on July 13, 1994, but it asserts that the duty to train did not expire, either pursuant to the language in App. A or in the body of the Agreement. It contends that the structure of App. A and the expiration of the fund one day short of the emendable date represent recognition of the separation of the two obligations. The Authority asserts, therefore, that Engineers' duty to train "continues" under the status auo reguiremen L.
The Authority argues that the obligation of Engineers to train and the Authority's obligation to compensate them are separate. It concedes that the 1984 side Letter was a way to compensate engineers for the work, but it denies that the obligation to provide the services was conditioned on the payments. The Authority asserts that, since it honored its commitment to make the PFP Fund payments, even though there were only two trainees, Engineers must honor their separate commitment to continue training.
The Authority contends that it is a management right under Sec. 1003 of the Agreement to determine when it needs to hire new people and have them trained. It is the Authority's: position that
it has the right. under Sac. 1003 to have Lnginwwrn perform work unless it has expressly given up the right. It as:~erts that there has been no modification or restriction of its right by any epecaLic provision of the AgraemAnt.
The Authority argues that training is part and parcel of Engineers' job. It point:: out that SEPTA Engineers have always provided 0J'1`. The Authority asserts that the fact that the duty is not expressly provided for in the Agreement or elsewhere jw not determinative.; it points out that many duties of Engineers are unstated.
The Authority concedes that it attempts to obtain volunteers to provide training;'-since volunteers are likely to perform better. However, it asserts that the fact that it seeks volunteers doesn't mean it does not have a right to require the work to be done. It argues that the fact that it tried Lo improve performance with bonuses and that no bonus is paid unless employees "go the extra step" is likewise not determinative whether the Engineer has an obligation to perform the basic duties.
The Authority rejects thci~Organization's position that it is not the work of hngineers to provide training. it points out that both Messrs. Smithers and Pio testified that the Authority possessed the right and had not relinquished it: Mr. 6mithers stated that trainees .from other carriers who required OTJ were trained by Engineers prior .to the 1984 Agreement; and Mr. pio stated that the Authority chose not to be in a position of forcing Engineers and therefore opted for n less-aggressive approach. SEPTA argues that the fact. that it voluntarily chose not to exercise its right,daesn't mean that the Authority never had the right or that it had waived its right.
The Authority points out that only one of the agreements with other carriers was introduced into evidence to establish an industry practice; and it contends that Agreement sslablishes nothing more than ,the practice on one particular property. it points out, in any event, that the agreements described as being in place on other properties relate to how much is to be paid for service, not to whether engineers have the obligation to perform the training. Indeed, the Authority points to Mr. Cassidy's testimony that, even an the Long Island Railroad, it the Carrier does not get: a sufficient number of volunteers, it could force engineers to train.
The Authority denies that it is SEPTA's position that Sec. 502 (e) of the Agreement is the source of its authority to compel training, but it contends that the Section recognizes the
Authority's right under sec. 1007 to require Enginparc to provide training under the circumstances of this dispute. IL asserts that the Section's definition, of "emergency" and 'r special circumstances" arc: far broader than the organization implies. The Authority contends that Sec. 502e allows it to project Ito nHeds and plan ahead to find, hire and train sngineerg - a J.t^ngi:hy process - and not wait until it is threatened with shutdown as a result of a shortage of Lngineerc. It argues that, even when it estimates wrung, that doaxn'L neyatc itc determination that thorn was a special circumstance- The Authority urgac that keeping the selection, training and certification procecc on track is an unusual circumstance sufficient to invoke Sea. 502 (e).
The Authority also points out that Sec. 509 (c) (iv) of the Agreement reserves to SEPTA the "manner" in.which a trainee is to receive training. It contends that the determination of who is to provide the training is an integral part of the "manner" in which training is to be provided.
The Authority concedes the principle that Engineers who perform training should be~compRnxated for it. It points out that it offered a series of proposal's to compensate Engineers, including the "benchmark" $.50/hour paid from 1984 until 1991, which it subsequently raised to $1.00/hour. It asserts that the sticking point is the Organization's insistence on compensation for every Engineer in the unit, regardless of whether they actually train, which it asserts is a remnant of the now-abandoned PPP concept.
The Authority discounts the argument raised by the organization that Engineers are afraid of jeapordizing their certification by being held responsible for a trainee's mistake. It points out that there is an fRA appeal process under which the Engineer is only accountable it the Engineer is negligent, as well as the trainee. It points out that the FRA Regulations came into effect in Jnauary of 1992 but that the Engineers voiced no fear of the certification risk as long as they were getting paid.
The Authority accepts the organization's argument that Engineers work because of pay and indicates that it is willing to bargain over the amount of pay for the work of training new engineers, but complains that there is no valid basis for it to pay for. work not done by giving the mangy to every bargaining unit employee. It assets that the Organization is attempting to use the issue to ncgot3ate an "across the board" raise.
The Authority- contends that the organization has taken inconsistent positions, arguing on the one hand that it "needs a carrot" to persuade its members to accept the additional
responsibility of training, bat also asserting that the "carrot" is not really a carrvL beoaurso it raprnsent> the Enginaprs' Mown money", diverted from othat· placQ~. TL contends that the Oryattization cannot have it "both ways'.
The AuLtcority argues that the court hearings involved only the quesLion of whether the dispute is major or miner, for which purpose it asserts the Lest waG whether any provicion of the Agreement "arguably" covers the dispute. =t urgec that the Judge lacked authority to determine the merits of the contract violation; and it asserts that his statements constitute mare dicta. SEPTA contends that, if &such issue had bean fn disputo, it would have presented evidence 3.n that regard, 'which it did-'not 'do.
The Authority asserts that the Organization failed to establish a violation of of the Agreement. It urges that the claims be denied.
Central to the Authority's arguments that Engineers are obligated to provide training as part of their regular fob duties is the concept that, .although the PFP Furxl expired on July 13, 1994, the duty of. Engineers to train continued. The Board is not persuaded. Appendix A is the sole provision of the Agreement under which Engineers provide training. Insofar as the record indicates, all training performed by bargaining unit employees between the effective date of App. A and .7uly 13, 1994 was provided pursuant to the Appendix by lingineer-Instructors who volunteered. to conduct training and received compensation through the PFP Fund for their availability. ,
There is no indication that the Engineer-Instructor designation was intended to be either mandatory or permanent. Indeed, implicit in the provision for providing training through volunteers is the concept that Enginmer-Instructors may 'can"volunteer. Indeed, by providing for payment on a pro-rata basis on the basis of monthly eligibility, the Appendix clearly contemplates the possibility that Engineer may sometimes be Engineer-Instructors, and sometimes not. To conclude that Engineers who once volunteer may not withdraw their willingness to serve would create a class of compelled volunteers - an oxymoron.
The Authority argues that the duty to require Engineers to provide training as part of their basic duties predated App. A, continued during the period covered by App. A and the pFp Fund and
survived after the Fund expired. Again, the Board ir; net persuaded. We note that Sec. 1008 of the Agreement providers that,
Where, as in the 1991 Agreement, the Partial have negotiated the issue of training, sec. 1008 provides, in part, that prior practices, rules, customs and procedures are superseded; wha4 is in the Agreement with respect to a, particular subject constitutes the terms and conditions reiating'o that subject.
The Authority's vision of the training obligation would, by contrast, have two levels of training obligation - one by the volunteer Engineer-lnstructars as set forth in the Agreement and another, unspoken, mandatory procedure whore the Authority could tap any Engineer, require them to provide OJT and pay them nothing for their service. Alternately, the Board supposes, the Authority might view that preexisting obligation as being suspended during operation of the Fund, then "snapping bank" upon its expiration. Either way, the Authority's vision of the unstated training obligation runs afoul of Sec. lOUS, which both limits the applicable conditions or employment to those set forth in the express provisions of the Agreement and supersedes prior prac:4ices, rules, customs and procedures.
Moreover, there is no evidence from the practice of tile Parties in their application of the Agreement during the period subsequent to either the negotiation of App. A or following expiration of the PFP Fund to support the existence of an obligation to provide OJT. Indeed, when the PfP Fund expired, the Engineers ceased to volunteer, and training was needed, the Authority did not invoke, or even assert, its "right" to require Engineers to perform the.itraining. Ins4eac3, the evidence is that it first attempted to entice volunteers individually to do the training. In addition, it provided the ~ofm for the first faux Engineer-Trainees through managerial employees. It is not possible
to rule out the Authority's stated motives for not aacarting its rights at that tuna, but the record is clear that thorn is no nYYirmative evidence Lu support the existence, or even asserrtion, of the right chimed.
As indicated, the Board concludes that App. A did not establish ur recognize Engineers' obligations to provide ~~1'P as part of Llte7r regular fob. To the contrary, it descrihad an obligation which was both limited and voluntary, for which substantial extra companoation was to be paid. To accept the proposition that Rnyinecrs have an unconditional obligation t0 perform OJT without any. obligation to .pay .extra compensation assumes that the Authority chose to pay extra for and accept restrictions on a right it- already had. ..There is no support in the bargaining history which led to the establishment o£ Appendix A for such a proposition.
The Authority argues that the Management Functions provision reserves to management the right to asxsign work to employees and direct its performance, including the right to assign Engineers to train student engineers, :since that right is not "expressly modified or restricted by a specific provision". For the reasons set forth, the hoard is net persuaded by the Authority's argument.
First, as indicated in the preceding section of the Discussion and Analysis, Appendix A doss constitute such a restriction, both on its own and in light of Sec. 1008. However, even if App. A were deemed not to restrict authority otherwise possessed by SEPTA, it does not constitute an affirmative grant of authority to compel Engineers to perform training- The Hoard believes that any such right to require Engineers to train must originate, under the Authority's argument, as a "retained right" - one which is not expressly modified or restricted by a specific provision of the Agreement. The. Agreement does not define the duties of Engineers; however, Sec. 101, the Recognition clause, provides that it, " . . , applies to work or service of transporting passengers performed. by..employes specified herein' and governs rates of pay, hours o£ service and working
The 73oard behoves that the Recognition Clause defines and restricts the c:overaye of then Agreement, including the rights of management recognized thereunder. sinco it is the Agreement which gives the Authority the right Lo direct and assign the particular employees covered by it, the Board caneludue that the Recognition Clause constitutes a limitation on the Authority's rightc _*/ to assign work. Thus, the Board believes that the Authority could not use the Agreement as authority to assign Engineers work balancing the Authority's books or":-to :.paint _'is .buildings because the Agreement dons not apply to such work. Similarly, under the Recognition Clause, the Authority may not assign Engineers work which is not "work or service of transporting passengers", "operation of engines. . . used in performing the work or service provided by engineers" or other work "recognized as the work of >;agineers".
Providing OJT to Engineer=Trainees is clearly ra part of transporting passengers or of operating engines and is not incident to such work. An Engineer can provide both services without any training functions; indeed, training is arguably a distraction from such service. Thus, it is necessary to examine what has been recognized on the property (or in the operation of its predecessor CONRAIL) as the work of Engineers. If such work has not been so recognized, it would thereby restrict the Authority from assigning the work to bargaining unit Engineers..
The limited evidence in the record shows nothing about CONRAIL's practice and only a limited amount about the rest of the industry. As a general matter, the evidence is sufficient to establish that Engineers perform OJT only when they are paid extra for it and, in mast cases, only when they volunteer. Again, I am not persuaded that such an industry practice supports the Authority's right to compel engineers to perform OJT.
In this regard, the Hoard is not persuaded, as a general matter, that duties. for which the Authority pays extra fall within
_*/ Of the Organization's argument that the clause references only management "functions" rather than "rights", the Hoard is not persuaded. The difference is semantic only and clearly includes the activities which the Authority might do in order to operate the rail system and manage its personnel resources.
the basic dutiau of Enyinccro. If that were ;o, there would be no reason to pay extra for them. Go, although the history of dealingb between the Pnrt.ins establishes that Enginecra have generally performed OJT for the Authority, it also establishes that they have on).y dons sc voluntarily and only for extra compensation: in 1983e no work was compelled or per£ormcd in the abaanes, of compensation; Lhe Side Letter was in effect from 1984 until 1951 and provided for training on n voluntary bacia, for extra compensation] and Appendix A was in effect thereafter. buring the two periods in which no compensation provisions were in effsct (1983 :sad 1994) and theta was no contractual provision limiting training to volunteers, the Authority did not ever compel, arid Engineers did not perform; training. '-
Neither are we··persuaaed that -the organization's proposal to add a new provision deYining the duties of Engineers constitutes an admission that they may presently be required to perform duties without limitation or. to perform the specific duties of training. As indicated, the present union Recognition clause is sufficient to limit the Authority's right to assign duties without limitation.
The Board is not persuaded that work which may not be compelled and for which extra compensation is always paid establishes that such Work is within the basic duties of Engineers. We conclude that such work may not be mandatorily assigned as a reserved management right.
Sections 501 through 504 deal with pay, work assignment of work, picks and extra work, but do not list actual Engineer duties . The organization and Authority contend, nevertheless, that Sec. 502 (e) of the Agreement constitutes a specific provision of the Agreement which bears on management's rights under sec. 1003 to assign work. It is assumed, for purposes of this analysis, that the Parties are correct. Section 502 (e) provides, in part, that,
The Authority asserts that sea. 502 (e) confirms its right to assign Engineers additional or different work "in emergencies or exceptional circumstances", even if such work is not within the
scope of regular Engineer work. It contends that since such circumstances existed ors a result of the shortage of Engineers, it had the right to assign Engineers to perform 03T. Tho Organization argues, conversely, that sec. 502 (e) modifies or restricts management's right to easier work: it must allow Engineers to work the runs picked and may assign additional work only when emergencies or exceptional circumstances exist. Tt denies the existence of any such circumstances. .
A review of the evidence indicates that shortages of qualified F.nginears have existed on SEPTA --inae its inception; they are the normal, rather than." except.Conal" circum--tancas. Moreover, there is no indication that there is any "emergency", e- it har In-terms of imminent danger of i.nterfarring with present- scheduled operation or adequate service or with futura'service projections. 'Indeed, the
tidal wave of OJT which was anticipated by the Ruler Department does not appear to have materialized. The 39 Engineer-Trainees who were anticipated appear to have decreased to 13. In short, the evidence does not persuade ma that the Authority may rely on the 502 (e) exceptions to impose the additional training duties on Engineers.
Finally, the Authority argues that sec, 509 (c) (iv) of the Agreement authorizes it to. require Engineers to provide OJT to Engineer-'trainees. That Paragraph provides that "[t)he manner in which an employee receives his training to become qualified shall be determined by sETPA." The Board is not persuaded that the reservation to the Authority of the "manner" in which training is received allows it to require Engineers to provide OJT to EngineerTrainees. The Board is not persuaded that the "manner" in which training is provided extends to encompass vac provides the training. Further, the section in, which the quoted provision appears relates to training of bargining unit employees, which Engineer^Trainees are not. We conclude that sec. 509 (c) (iv) does eat support the Authority's position.
The Board notes that the Authority is providing compensation, at the rate set by the 29134 side Latter, to those Engineers whom it compels to provide training.- Since the Side Letter was superseded by the 1991 Agreement, the contractual basis for the payments is non-existent; and the payments appear to derive from the Authority's concession that game compensation is due for the service. The Board concludes that, while the payments have served to strengthen the Authority's equitable position and reduce its
The organizationtc rink-sharing rationale for insisting that all Engineers should receive payment for being available to train
is not persuasive; and the Board declines to extend its remedies to Engineers other than those who have performed the training-
TF1e record is clear, however, that the Authority has compelled Engineers to provide training in violation of the Agreement. The violations cannot bn'characterizad am unint'entidnal ot'iri'aidental; and award to each Engineer required to provide instruction for each such violation of 'a day's '-pay, less Viie 50 cents "per hour previously paid is an appropriate remedy, consistent with industry practice, to compensate the employees and deter future violations.
However, as both Parties concede, determination of compensation to be paid to Engineers for performing OJT is properly made in the course of collective bargaining. It is to that forum that the Board directs the Parties. It may be that the Parties ultimately determine in bargaining to compensate Engineers for training on a different basis and determine that Engineers who have performed training during this period should be compensated in the same, or some other, manner. Accordingly, implementation o£ the economic portion of the remedy suspended, pending resolution of the bargaining process on this issue.