_{CARRIER FILE NO. 9500705
ORGANIZATION FILE NO. C95-0539}

UNITED TRANSPORTATION UNION)
                                                      )
                        VS )     NMB CASE NO. 120
                                                      )     AWARD NO. 120
UNION PACIFIC RAILROAD CO. )

Claim of Cheyenne Conductor J. G. Schmechel for $117.84 in lieu of $96.36 account exchanging trains enroute on December 1, 1994.

The Carrier and the Employees involved in this dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act, as amended. This Board has jurisdiction of the dispute here involved.

This claim comes before the Board based on an allegation that Carrier failed to properly apply Part VIII, Section 7 of the Interdivisional Service Agreement entered into by the parties on May 22, 1972. For this record, Section 7 reads as follows:

"An employe in interdivisional service having time to work under the Hours of Service Act will not be required to exchange trains with an employe who is on short time under the Hours of Service Act. In the event of non-compliance with this Section 7 the employes who are required to exchange trains will be allowed a penalty payment of 100 miles and will be restored at the first opportunity to their same relative position on the Board."

Claimant in this dispute was working in Interdivisional Service on December 1, 1994, and was required to exchange trains (there is no dispute here that such exchange was with an employee who was on short time under the Hours of Service Act). Claimant thereupon submitted a claim for a basic day under the provisions of the second sentence of Section 7 above quoted. (Note: When the Interdivisional Service Agreement was entered into on May 22, 1972 the "Basic Day" was 100 miles. Later agreements have steadily increased the basic day mileage and at the time this claim arose 126 miles constituted a basic day.)

The claim for 126 miles ($117.84) was denied and claimant was allowed the sum of $96.36 based upon Carrier's argument that the payment of a "basic day" in this instance constituted a "duplicate payment" and that such duplicate payments were frozen under the terms of Article IV, Section 5(b) of the October 31, 1985 National Agreement which reads as follows:

"Duplicate time payments, including arbitraries and special allowances that are expressed in time or miles or fixed amounts of money, not eliminated by this Agreement shall not be subject to general, cost-of-living or other forms of wage increases."

The Organization has argued before this Board that the "penalty payment" set forth in Part VIII, Section 7 of the May 22, 1972 Interdivisional Run Agreement cannot be considered a "duplicate time payment" as that term is used in the October 31, 1985 National Agreement and that such agreement does not freeze this penalty payment rate.

On the other hand, Carrier argues that the penalty payment, which provides an additional day's pay to the employe(s) required to exchange trains, can only be considered as a "duplicate time payment" in that it allows payment which is in addition to claimant's regular earnings while on duty and under pay.

The question to be decided by this Board is whether or not the "penalty payment" provided by Part VIII, Section 7 of the May 22, 1972 agreement is a "duplicate time payment" as referred to in the October 31, 1985 National Agreement.

Carrier has argued that, "Penalty payment claims are for payments made to an employee who was disadvantaged in his or her earning capacity as a result of Carrier mishandling and/or something recognized as an agreement violation. In the instant case, claimant was not disadvantaged, mishandled nor was there an agreement violation. Here, this agreement specifically provides an additional payment while on duty and under pay which is permissible under the contract."

It is the opinion of this Board that the literal language of Section 7 cannot be read in the context set forth by Carrier; that is, there is nothing in Section 7 which "permits" Carrier to require employees to exchange trains. To the contrary, the language in the first sentence of Section 7 prohibits a requirement that employees exchange trains under the specified circumstances. It is only when Carrier violates this provision that the agreement then provides for the penalty payment to compensate the employe (s) for violation of the rule. 

Both parties have cited certain prior awards, alleging such awards support their respective positions in the instant dispute. The Board has closely reviewed the cited awards and fail to find one therein which fits the exact circumstances of this particular dispute. Of the awards cited it is the opinion of this Board that the closest parallel is to be found in Award No. 6 of Public Law Board No. 5994 wherein it was found that the penalty payment provided by the agreement there involved did not constitute a "duplicate time payment" as set forth in Article IV, Section 5, of the October 31, 1985 National Agreement.

As we view Part VIII, Section 7 of the May 22, 1972 Agreement, the parties specifically agreed that an employe in interdivisional service having time to work under the Hours of Service Act will not be required to exchange trains with an employee who is on short time under the Hours of Service Act. It is therefore the opinion of this Board that when Carrier required claimant to exchange trains on December 1, 1994, it was in non-compliance; i.e., it was in violation of this specific provision. As a penalty for such non-compliance (violation) Carrier agreed to a penalty payment for such action. It cannot now be said that the adoption of Article IV, Section 5(b) of the October 31, 1985 National Agreement somehow nullified the special rule set forth in the May 22, 1972 agreement.

Based on the record, it is the finding of this Board that the penalty payment set forth in Part VIII, Section 7 of the Interdivisional Service Agreement dated May 22, 1972, is not a "duplicate time payment" as set forth in the October 31, 1985 National Agreement. Having so found, it must necessarily follow that the penalty payment does not fall in the category of a frozen rate.

Claim sustained. Carrier is instructed to comply with this award within 30 days of the date hereof.

F. T. Lynch, Neutral Chairman

C. R. Wise, Carrier Member

A. Martin, Employee Member

Award date March 3, 1999