PUBLIC LAW BOARD NO. 5400

Award No. 12
Case No. 12 

PARTIES              Union Pacific Railroad Company

TO                                 and

DISPUTE:             United Transportation Union (CT&E)

Claim of Conductor R. L Martinson and Brakeman S. F. Balluff for an additional $22.77 switching allowance in addition to the guarantee pay on May 3, 1990.

Effective December 1,1986, the parties entered into an amendment of their June 29, 1984, Crew consist Agreement, the amendment to be applicable to the 12th Seniority District only. The Amendment provides that the basic crew consist for all crews operated on the 12th Seniority District of the Eastern District shall be one (1) conductor/foreman and one (1) brakeman/ helper. The Amendment also provides, among other things, for guaranteed extra boards for conductors and brakemen which guarantee a specific number of miles at specified rates of pay.

In a side letter to the Amendment, dated November 22, 1986, the parties agreed to the following Paragraph (3):

"Penalty claim payments due employees assigned to a Guaranteed Extra Board will be paid in addition to the earnings received as a Guaranteed Extra Board employee."

The phrase "penalty claim payments," used in Paragraph 3, was not defined.

Schedule Rule 32(K) reads as follows:

"When road crews are required to perform yard switching other than as provided in this rule they shall be paid on minute basis at 3/16ths of the daily yard rate with one hour arbitrary at 3/ 16ths of the daily yard rate independent of the road trip, and first out extra yard crew available at such terminal will be allowed a minimum day at yard rates."

On May 3, 1990, the Claimants were paid one hour and ten minutes for switching performed at Cheyenne, Wyoming, amounting to $23.80 for Conductor Martinson and $22.17 for Brakeman Balluff. In the computation of their guarantee adjustments for the first half of May, 1990, Carrier included the 32(K) payments as part of their earnings; it did not treat them as penalty claim payments to be paid in addition to their earnings as Guaranteed Extra Board employees. The Organization contends that the payments were penalty claim payments and that they are entitled to the amounts claimed over and above their guarantee payments for the period involved. Carrier takes the opposite view.

The Organization argues that payments under 32(K) are penalties upon Carrier for requiring employees to cross craft lines to perform the work of another craft, that in payment of claims under 32(K), Carrier has always referred to the Claimants as performing "penalty switching," and that permitting offset of 32(K) payments against guarantees would effectively eliminate the craft protection which Rule 32 was designed to enforce, which could not have been the intention of the November 22, 1990, letter agreement.

Carrier argues that "penalty claim payments" as generally understood in the industry are payments to an employee disadvantaged in his earning capacity as a result of Carrier mishandling, something recognized as a contractual violation, and not just an interpretation of pay entitlement as provided by Agreement. The payments here are arbitrary allowances provided for in 32(K) when road crews perform yard switching; in this case, they were payments to the Claimants for service which they permissibly performed under 32(K), not claims for additional pay because they were required to perform service not permitted by and in violation of schedule rules.

This is a question of first impression on the property, and we have been furnished with no awards, on or off the property, which deal with the specific issue before us. As stated above, the parties did not define the phrase, thus leaving it open to the varying interpretations urged by them in this case. Having considered all of the arguments presented, we conclude that the meaning of the phrase "penalty claim payments" which is most consistent with the general use of that language in the industry, is that which is argued for by the Carrier, and that the payments for switching in this case under Rule 32(K) are not "penalty claim payments" within the meaning of the side letter. Although it is not binding in this case, we think it is supportive of our conclusion that in a December 21, 1989 Amendment to Crew Consist Agreement on another seniority district of the Carrier, penalty claim payments were also excluded from computation of employees' guarantees; and the Carrier and the UTU General Chairman in that district specifically agreed in a letter agreement dealing with what payments are considered to be penalty payments, that switching allowances are not penalty payments.

We are also satisfied that our conclusion in this case is not incompatible with Award No. 352 of SBA No. 955 (CSX-UTU), cited by the Organization, in which that Board held that the "special allowance" provided for reduced crews in a crew consist agreement was not offsettable against the employees' guarantees. In its Award, that Board cited a specific provision in the crew consist agreement that special allowances would not be used in the computation of any monetary guarantees.

AWARD: Claim denied.

H. Raymond Cluster
Neutral Member

Byron A. Boyd
Employee Member

W. S. Hinckley
Carrier Member