Award No. 2
Case No. 2
9-4657-446-R
TL-8786
PUBLIC LAW BOARD NO. 3736
PARTIES: United Transportation Union (C&T)
vs.
Union Pacific Railroad Company
STATEMENT OF CLAIM:
Claim of Cheyenne Fifth/Sixth District Conductor J. R. Ford and R. J.
Frymi for a basic day each at the appropriate rate of pay account of being
required by the Carrier to pass a written rules examination on February 22,
1983 and February 17, 1983, respectively.
DISCUSSION:
These claims involve the question of whether or not employees should be
compensated for time spent taking mandatory proficiency examinations. The
claims grew out of a rules examination policy implemented June 1, 1980 in
response to a finding of the National Transportation Safety Board "that Union
Pacific employees are apparently not adequately instructed concerning Union
Pacific rules, nor are they properly examined on the rules." Under this
policy employees are required to be re-examined every two years. The passing
score was first set at 80%, and later changed to 85%.
The Claimants here were re-examined on their layover day, and both
received the required passing grade of 85% or better. It is their contention
that they are entitled to compensation for the time they spent taking the
examination.
The respective positions of the parties are:
ORGANIZATIONS POSITION:
The organization asserts that Rules 78 and 17, respectively, of the Road
and Yard Schedule allow for the claimed compensation.
Rule 78 of the Road Schedule reads (in part):
(a) Conductors and brakemen attending court or other business on behalf
of the company (other than attending investigations) will be paid
as follows, together with the necessary expenses.
(b) Conductors and brakemen in pool freight or assigned service will
receive what they would have earned had they remained on
assignment, and if used on a layover day, will receive a minimum
day's pay.
Rule 17 of the Yard Schedule reads:
"Yardmen attending court, or other business on behalf of the railroad
will be allowed full time and necessary expenses"
The Organization further states that when these provisions are applied
the method of payment is determined by Rule 26 of the Road Schedule and Rule 2
of the Yard Schedule, both entitled Basic Day.
The Organization stresses that the claim for a basic day's pay does not
include any time spent in preparation for the exam. They emphasize that
preparation time combined with the time spent in taking the exam would be such
greater than the normal basic day. In addition, the organization points out
that the re-examinations are mandatory and not voluntary.
The Organization cites Federal Register Vol. 42, No. 104, page 27596 as
supportive of their position. The opinion states that case law has determined
that training sessions are "time on duty". The findings of Public Law Board
No. 1766, Award No. 19, which allows for payment under the Basic Day rule for
those required to attend training sessions, are also cited in support of the
Organization's position.
Finally, Public Law Board No. 2126, Award No. 5, a case involving both
Union Pacific Railroad Company and United Transportation Union affirms the
findings of Public Law Board No. 1766, Award No. 19 and states "An employer
may not, at his whim, appropriate an employee's hours when he is not scheduled
to work."
THE CARRIER'S POSITION:
According to the Carrier the purpose of the re-examination policy is to
improve safety, an improvement which would benefit both employer and employee
alike. The Carrier refers to the ruling from Public Law Board No. 2975 in
which a claim similar to the ones involved in this case was denied. The basis
for the Board's decision was the mutuality of benefits derived from
re-examinations. The Carrier emphasizes the fact that the decision was on
this property.
In asserting that attendance of rules examination is not compensable,
the Carrier also cites decisions involving other properties. First Division
Award No. 12203 and First Division Award 15126, denied claims for compensation
for attending training classes. First Division Award Nos. 12204, 12205 and
10809 and Award No. 8 of Public Law Board No. 198 denied claims for payment
for attendance at rules examinations. The Carrier asserts that these
decisions constitute the majority view because they are awards from more than
one property, including the Carrier. The Carrier further argues that the
awards cited by the organization should only be looked to as a minority
position.
Finally, the Carrier argues that Rules 26 and 27 do not support the
Organization's claim because they are general rules that do not specifically
refer to a provision for compensation for rules examination attendance.
FINDINGS:
Although Rules 26 and 27 do not specifically refer to compensation for
rules examination attendance, they do provide for the calculation of payment
for a Basic Day. Rules 78 and 17 of the Road and Yard Schedule provide that
employees engaged in "business on behalf of the railroad" will be allowed a
minimum day's pay. The Carrier does not mention Rule 78 and 17 in its
argument against the invocation of Rules 26 and 27. However, if it is
accepted that attendance at a rules examination is "business on behalf of the
railroad" as stipulated In Rules 78 and 17, then the application of Rules 26
and 27 does not appear to be unfounded.
In asserting that its position is in the majority, the Carrier
emphasizes the fact that the awards it cites involve more than one property,
whereas the awards noted by the Organization involve only one property, and
not the property involved in the dispute presently before this Board.
However, the Carrier essentially dismisses the Organization's citation of
Public Law Board No. 2126, Award No. 5 which involved this railroad and this
union, on the grounds that in that particular case the interpretation of a
specific rule was involved.
This Board is persuaded by the logic reflected in the Awards of Public
Law Board No. 1766, Award No. 19 and Public Law Board 2126, Award No. 5. In
reaching this conclusion we have examined at length Award No. 16 of Public Law
Board No. 2975. We share that Board's reasoning that rules re-examinations
should be of mutual interest and mutual concern to employee and employer
alike. We part company, however, with that Board's conclusion that in the
absence of a specific rule any compensation claims must be denied. it seems
to us that this approach could give rise to serious abuse with respect to such
matters as the frequency and/or length of such re-examination. Account must
also be taken that the re-examination requirements are mandatory.
In reaching our conclusion we are not holding that the application of
the basic day rule is the most appropriate basis for compensation in
circumstances such as those in this case. The parties could negotiate a
specific rule addressing compensation for rules re-examinations that would
provide for payment of a different nature - or nothing at all. But in the
absence of such a rule the basic day rule must apply.
AWARD:
Claim sustained.
John N. Gentry
Chairman and Neutral Member
R. D. Meredith, J. L. Thornton,
Carrier Member Employee Member
Washington, D.C.
May 31, 1985
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