NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 6171

John C. Fletcher, Chairman and Neutral Member
Gene L. Shire, Carrier Member
Stephen D. Speagle, Employee Member

BROTHERHOOD OF LOCOMOTIVE ENGINEERS
  BNSF SANTA FE, GENERAL COMMITTEE

and

BURLINGTON NORTHERN AND SANTA FE
  RAILWAY COMPANY

Award No. 32
Case No. 32
Engineer D. A. Crain

Date of Hearing – April 1, 2002
Date of Award – April 30, 2002

Statement of Issues

The Chairman and Neutral Member, after review of the entire record, has determined that the issue before this Board is:

Is Claimant Engineer D. A. Crain entitled to the penalty claimed in connection with his assignment from the Belen Extra Board on June 10, 2001?

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FINDINGS:

Public Law Board No. 6171, upon the whole record and all of the evidence, finds and holds that the Employee(s) and the Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute(s) herein.

Claimant was assigned to the Engineer’s Guaranteed Extra Board at Belen, New Mexico. On June 10, 2001, he went on duty at 2230 hours to relieve the engineer of Train Z-KCKSBD3-09A, outlawed under the Hours of Service. The record shows that Claimant’s departure from Belen by taxi and his return with train Z-KCKSBD3-09A constituted a round trip of 75 miles. Claimant was then directed to perform three additional “dog-catches” of 55, 27, and 69 miles respectively. Claimant submitted time slips for 226 actual miles and two additional penalty days’ pay on the basis that he was improperly used from the extra board to perform “multiple dog catch” service. Carrier disallowed the penalty claims and paid him actual miles for all three “rescues”, and in due course, the instant claim was presented. As resolution of the matter could not be achieved on the property, it was presented to the Board for disposition.

Positions of the Parties:

Carrier argues that Claimant was properly called from the extra board to perform multiple hours of service relief work and was appropriately allowed actual miles. Carrier rejected the Organization’s contention that Article 3(g) of the controlling Agreement was violated on the basis that Claimant was not permitted to tie up after the first relief assignment, and then mark up at the bottom of the extra board. Article 3(g) states:

Freight engineers in unassigned service will run first in, first out of terminals on their assigned districts, except as provided in Paragraph (h) of this Article 3. The arrival time at a designated point at individual terminals, as may be agreed to locally, will govern their mark-up time on the board at such terminals.

On this point, Carrier asserts that, “The [Organization] wants this Board to accept Article 3(g) as an automatic release rule and therefore require the Carrier to call extra engineers under Article 3(h), the Freight Turnaround Rule…” However, according to Carrier, Claimant was not called for Turnaround Service under Article 3(h), and as such, he is not entitled to compensation claimed under its authority. Article 3(h) states:

Engineers in the pool or irregular freight service may be called to make short trips or turn-arounds with the understanding that one or more turnaround trips may be started out of the same terminal and paid actual miles with minimum of 100 miles for a day, provided (1) that the mileage of all trips does not exceed 100 miles, (2) that the distance run from the terminal to the turning point does not exceed 25 miles, and (3) that engineers shall not be required to begin work on a succeeding trip out of the initial terminal after having been on duty 8 consecutive hours, except as a new day, subject to the first-in-first-out rule.

Carrier stipulates to the clear direction in Article 3(h), but argues that it does not apply here, either on its own, or as the only exception to Article 3(g) above. First of all, according to the Carrier, Claimant was not in “pool or irregular freight service”, but was instead called from the Belen Extra Board. As such, according to Carrier, Article 3(h) provides no basis for Claimant’s contention. In support, Carrier cites Award 10 of PLB 2703 (Ables), which concludes:

Here the Organization relies on Rule 42 which is entitled “Short Turn Around Freight Service”. This is not a pay rule. It is a call rule. In essence the rule provides when conductors in prescribed freight service may be called to make short trips and turnarounds. Whatever may be the pay obligation of the carrier in the event it calls a conductor under that rule but exceeds one of the three provisos for calling a conductor to such service, it does not apply in this dispute because the rule applies to calling conductors in “pool” or “irregular” freight service. The claimant conductor was called off an extra board. Certainly by this time, in this industry the parties in making a rule on the property know the difference between extra board service and pool or irregular freight service and can – and do – specify what they intend in various agreed rules (Emphasis added)

The Carrier also accuses the Organization of now progressing the instant dispute “through the back door” under Article 3(g), in light of substantial prior authority indicating that Article 3(h) and other “Turnaround” rules identically crafted on other properties, do not apply when 1: the Claimant is in other than “pool or irregular freight service”, and 2: when such Claimants are called for multiple “dog-catches” which require them to proceed in and out of the same terminal on more than one round trip during a single tour of duty. Among those awards cited, the Board reviewed Award 17 of PLB 4450 (Eishen, 1994), which stated:

From every indication we have, Claimant was not called for any particular trip or run but rather was called at the outset for fly catch/dog catch service, i.e., to provide relief for a crew or crews outlawed under the Hours of Service Law. Significantly, the claim also makes no reference to any call for “immediate service” subsequent to arrival at Yermo with the first outlawed train. We must conclude that the conditions for properly invoking Rule 82 were not met in this case.

It has been authoritatively determined on this property that, in the absence of contractual support under a terminal release rule, multiple dog catching trips during a single tour of duty are payable on the basis of the greater of continuous time, actual mileage or a basic minimum day. (Emphasis added)

Award 3 of PLB 5028 (Van Wart, 1994) was also cited by the Carrier, and held similarly that:

Carrier further cited Award 24 of PLB 4450 (Eischen), which again addressed the issue of “short turnaround” service versus Hours of Service relief. It stated in pertinent part:

In the absence of an applicable terminal release rule, this Board has followed the holdings of PLB 5028 (Van Wart, 1993) that Carrier correctly compensates operating employees called in multiple hours of service relief work by paying the greater of a minimum basic day, actual miles or total time on duty, plus any penalties or arbitraries which apply. With regard to the Short Turnaround Service Rule the Board finds no reason to reject the holdings in PLB 2703-10 that Rule 48 is a call rule, not a pay rule. Nothing in this record supports a conclusion that Carrier had a contractual obligation to call Claimant under Rule 48 to perform multiple dog catch duties. So far as the record shows, he was called off the extra board in “unassigned service” and was properly compensated on claim date. (Emphasis added)

Finally, Carrier cited Award 12 of PLB 6390 (Vaughn, 2001) on the property, which contained the following germane

Upon the whole of the record, and in light of the cited precedents, the Board is not convinced that the Carrier did violate the Agreement as alleged by the Organization [UTU]. The record establishes that the Claimant was called in unassigned Hours of Service relief, as opposed to short-turn service, and was properly compensated the greater of total time or miles. The Board is persuaded that this was proper in light of the prior authority cited by the Carrier, for two significant reasons. First, the Carrier asserts (with no material rebuttal from the Organization), that the language of the Short Turnaround rule addressed therein was nearly, if not totally, identical to that which the Board now considers. Moreover, as indicated in those Awards, the Board similarly finds no evidence of an automatic release rule which would have required the Carrier to release Claimant upon return from his first dog-catch assignment. The Board concludes, therefore, that the Carrier was under no obligation to place Claimant at the bottom of the Amarillo extra board and call another crew for his second rescue assignment. (Emphasis added)

As noted by the Carrier, Referee Vaughn also adopted logic similar to that expressed by Referee Van Wart and Eischen above, that the “Short-Turnaround” rule referenced therein, and equivalent to Article 3(h) here, constituted a call rule as opposed to a pay rule. In other words, as Carrier notes, Referee Vaughn concluded in light of prior authority, that Carrier was not contractually constrained to regard “multiple dog-catches”, ordered as such from the extra board, synonymous with “short-turn” pool or irregular freight service.

In light of the above, Carrier insists that the Organization is now improperly invoking Article 3(g) by contending that Claimant should have tied up upon his arrival at Belen with Train Z-KCKSBD3-09A and marked up at the bottom of the extra board. In rebuttal, Carrier contends that, “The Claimant never arrived at his off duty point and was not released by the Carrier. The Carrier has called the Claimant [to] dog-catch multiple trains so the Claimant knew that he was not released after arriving back at the terminal with the first train. Engineers do not release themselves but must remain on duty until they have completed the assignment” (Carrier submission at page 13). On point, Carrier cites Schedule Article 28, which states:

In all classes of road service, an engineer’s time will begin at the time he is required to report for duty and continue until the engine is placed on the designated track and the engineer is relieved at the off duty point specified in the bulletin. (Emphasis added)

Carrier relies on cited prior authority with respect to the presence (or absence) of an “automatic release” rule which would support the Organization’s contention that Claimant was effectively “released” upon his first return to Belen. Carrier notes that elsewhere on its combined properties, such “automatic release” rules do, in fact exist. However, Carrier argues, that no such rule is included in the agreement controlling the instant dispute. ⁽¹⁾

Carrier maintains that the Organization failed to substantiate its claim by providing a contractual “nexus” between events precipitating the instant claim and a rule (or rules) prohibiting them, and as such urges the Board to deny the claim in its entirety.

The Organization argues that, “There is no agreement on this property that allows the Carrier to use Engineers in multiple trips out of a terminal except those expressly stated in the Eastern and Western Lines Agreement.” The Organization asserts that Article 3(g) provides authoritative direction as to “how engineers should be handled when called for duty”, and that is First in/First out. The Organization asserts that Claimant was called “specifically and exclusively” to dog-catch Train Z-KCKSBD3-09A, and argues that Carrier improperly held him on duty afterward to provide three additional “rescues”.

The Organization does not argue that Claimant was actually called (or should have been called) under Article 3(h) (Freight Turnarounds). Instead, the organization asserts that because Article 3(h) provides for the one and only stipulated exception to the First in/First out principle, and because Claimant was called for Hours of Service relief and not for a turnaround, he was improperly held on duty after he completed his first dog-catch. The Organization asserts that, “Requiring the Claimant to perform these last three (3) dog catches is a clear violation of Article 3, paragraph (g) which addresses First-In, First-Out. No other agreement exists between the parties that would allow this use of an engineer after he has reached his board placement location, which we consider an ‘Automatic Release Rule’ to be in effect” (Organization submission at page 6, emphasis added).

The Organization accuses Carrier of attempting to gain a privilege through arbitration that it was unable to achieve through collective bargaining. As to prior authority cited by Carrier, the Organization asserts that the only Award on the property, PLB 6390, Award 12, was in error in that Referee Vaughn inappropriately “[looked] for an automatic release rule”, where one already existed (or was implied) in the UTU equivalent to Article 3(g). In other words, the Organization reiterates that Article 3(g) supports a definitive conclusion when an extra board engineer arrives at his “designated location”, he is “automatically released”, regardless of the service for which he was ordered, even though the Agreement contains no express language to that end.

The Organization further cites Referee Vaughn for failing to address its contention that there is “no rule or agreement that allows the Carrier to use an employee on multiple trips out of his initial terminal except under the direction of the Short Turn Around Rule, and further that his decision was “clouded” by “total reliance on awards that were rendered on other railroads.” On this point, the Organization cites PLB 5410, Award 74 (Twomey, 2001), which states:

We find that on the former Frisco property, Article 30, Section H provides the only contractual authority for the utilization of multiple trips for either pool freight or extra crews. This board has no authority to sanction the unilateral creation of a new class of service on this property by the Carrier, called “hours of service relief”, which does not exist in the collective bargaining agreement between the parties, has no bargaining history, no pay rules, no call rules, and absolutely no practice on the property. The Fort Scott ID Agreement has been in effect since 1982 and the Carrier over the years has utilized the short turnaround service rule of Article 30, Section H(1)(a) subject to the time and mileage restrictions for multiple trips in hours of service relief along with various other uses where the hours of service relief could not be performed within the restrictions of the short turnaround rule or the work would be performed on a single-trip basis if multiple trips were required they would be subject to the restrictions and payments required by Article 30 Section H and I. A basis does not exit in the record before this board for the unilateral promulgation of a new class of service for hours of service relief which could permit multiple trips devoid of the time/miles and trip restrictions clearly and unambiguously set forth in Article 30 Section H and I. (Emphasis added)

For the foregoing reasons, the Organization argues that Carrier violated the controlling Agreement, and accordingly urges the Board to sustain the claim.

Discussion:

After carefully scrutinizing the entire record, and examining the arguments of the parties, the Board is convinced that Carrier should prevail for several pivotal reasons. First, Claimant was an extra board engineer, and therefore not, as both parties appear to stipulate, subject to call under Article 3(h) – Freight Turnaround on June 10, 2001. (The record establishes that Article 3(h) applies to “engineers in pool or irregular freight service”, and this Board adopts Referee Ables’ reasoning that had the parties intended it to extend to extra board engineers, they would have so indicated.) Since that is true, the Board is compelled to address precisely how Article 3 (g) should have been properly applied, if indeed, it was not. In other words, since it is agreed that Claimant was not employed in “Freight Turnaround” service under Article 3(h), at what point should he have tied up under Article 3(g); when he returned from his first dog-catch, or when Carrier relieved him from duty within his Hours of Service? Clearly, this question has already been wrestled with, and a definitive answer, whether or not it is to the Organization’s liking, has emerged: In the absence of a stipulated automatic release rule, extra board engineers, are relieved from duty when they are released by Carrier. This, the Board finds, is true even when they operate in and out of the same terminal more than once per tour of duty. Clearly, and herein lies the real rub, the Organization argues that Article 3 (h) is prohibitive to the extent that it defines a particular (and exclusive) classification of service which may operate in this manner. However, Carrier is quite correct in noting that the Organization has cited no schedule rule prohibiting other types of unassigned extra service, such as the one under consideration here, from operating in somewhat the same manner.

That being said, then, the question put before the Board by the Organization relative to Article 3(g) (First in/ First out) is not so much whether Claimant was, indeed, properly placed on the Belen Extra Board subsequent to his service on June 10^th, but at which point in his service should he have been placed there. Here is where Referee Van Wart, Eischen, and ultimately Vaughn took a stand. Similarly, this Board concludes that in the absence of a stipulated automatic release rule, Claimant was released from duty and free to mark up on the extra board when his assigned duties on June 10, 2001 were completed. There is absolutely no evidence in the record to suggest that Claimant’s position on the extra board was otherwise mishandled, so the Board concludes that the Organization presents no additional basis for relying on Article 3(g) here.

As to the Twomey decision cited by the Organization, the Board observes that it is not altogether on point. Moreover, the Board finds the Organization’s criticism of Referee Vaughn relative to his alleged failure to consider that Award misplaced. According to his findings, Referee Vaughn heard argument on the case resulting in Award 12 of PLB 6390 on November 10, 2001. Referee Twomey issued his findings on October 29, 2001, just 12 days earlier. Ass the potentially significant Twomey decision was not referenced by Referee Vaughn, it is therefore highly unlikely that it was cited by the Organization in that case, particularly because he noted:

The Organization urges the Board to disregard any precedent cited by the Carrier from any other property…

Surely, had the Organization been aware of this arguably pivotal award on the property, it would have cited it. Accordingly, this Board is not persuaded by the Organization’s suggestion that Referee Vaughn’s logic was somehow biased or incomplete because of that omission.

As to the findings in Twomey, the Board notes that the Referee, in fact, addressed a similar issue to the ultimate favor of the Organization, but under an entirely different agreement. The Board notes that Article 30, Section H and I of the Fort Scott ID Service Agreement, upon which Referee Twomey based his decision, pertaining to pool crews only, in spite of his reference to “extra” crews in his findings. Claimant in that case was, in fact, a “short pool” conductor, and not an extra board conductor. The Board further notes that Referee Twomey’s decision turned on the language in Article 30, which was not based upon National Agreement language common to all off-property awards cited by Carrier in support of its position in this case. As such, the Board does not concur that the Twomey decision supports a conclusion that requiring extra board engineers to perform multiple dog-catches out of the same terminal under this controlling Agreement, constitutes an inappropriate implementation of a “new classification of service”. Clearly, in light of cited precedent, other distinguished arbitrators have concluded likewise.

As to the Organization’s suggestion that a finding in favor of the Carrier would grant a privilege not achieved at the bargaining table, the Board is compelled to point out that a finding in favor of the Organization’s principle argument would be tantamount to writing an automatic release rule into Article 3 of the current Agreement (which could impact Carrier in any number of ways outside the instant scenario) where none exists currently. Clearly, this is outside the scope of the Board’s authority. The Board is therefore persuaded that because the parties could have negotiated and expressly included an automatic release rule (as noted on the former Great Northern property) and did not, and moreover because no such rule, in the opinion of this Board (and others), is implied in Article 3(g), Carrier properly ordered Claimant to perform unassigned extra board service of a nature not necessarily stipulated by Agreement, but not in violation of it either.

On the evidence, then, and in light of distinguished and reliable precedent addressing substantively identical contract language, the Board concludes that Claimant was properly ordered, utilized, compensated and ultimately placed in his proper turn on the Belen Extra Board on June 10, 2001. For the foregoing reasons, the Board is convinced that a violation of the controlling Agreement was not established by the Organization. Accordingly, the instant claim must be, and is, denied.

AWARD

The issue before this Board:

Is Claimant Engineer D. A. Crain entitled to the penalty claimed in connection with his assignment from the Belen Extra Board on June 10, 2001?

is answered in the negative, “No”. The claim is denied.

ORDER

The Board concludes that an award favorable to the Claimant shall not be made.

( signed )

Dated at Mount Prospect, Illinois – April 30, 2002

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1. See for example Great Northern/BLE Schedule Rule 31 (a), stating: “Engineers arriving at terminals or end of run are automatically released, except as provided in paragraph (b) and (c) of this rule.”

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