CARRIER FILE NO. 9400032
ORGANIZATION FILE NO. C94-0227

UNITED TRANSPORTATION UNION) 
                                                      )
                        VS )     NMB CASE NO. 130 
                                                      )     AWARD NO. 130 
UNION PACIFIC RAILROAD CO. )

Claim of Denver Conductor S. F. Balluff for 20 minutes final delay on November 28, 1993.

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.

There is no dispute over the basic facts in this case which are that claimant, Conductor S. F. Balluff, has an established seniority date of June 4, 1973. On November 28, 1993, claimant was assigned to the Twelfth District pool freight service and was called for duty at his far terminal (Cheyenne) for 8:05 PM, MST, on Train LADET-27. The claimant was transported by van from Cheyenne to Speer, Wyoming, where he took charge of the LADET-27 which departed Speer at 9:55 PM. Claimant arrived at his home terminal (Denver) on November 29, 1993, at 12:40 AM and went off duty at 2:00 AM.

Claimant submitted a claim for a basic day and 20 minutes final terminal delay. His claim was denied by the Timekeeping Department, such denial stating, "Terminal time is not paid on runs of less than a basic day. No further allowance is due."

It is the position of the Organization that the claim here involved is covered by Rule 33 (a) of the governing agreement as modified by Article V of the October 31, 1985 National Agreement. For this record, Rule 33(a) reads in part as follows:

"Rule 33. FINAL TERMINAL DELAY OR SWITCHING. "(a) For freight service, final terminal time shall be computed from the time the engine reaches designated arrival point and paid for the full delay at the end of the trip on the minute basis of l/8th of daily rate per hour when no overtime accrues to time of release."

Article V, Section 1 of the October 31, 1985 National Agreement reads as follows:

"ARTICLE V - FINAL TERMINAL DELAY, FREIGHT SERVICE
"Section 1 - Computation of time
"In freight service all time, in excess of 60 minutes computed from the time engine reaches switch, or signal governing same, used in entering final terminal yard track where train is to be left or yarded, until finally relieved from duty, shall be paid for as final terminal delay; provided, that if a train is deliberately delayed between the last siding or station and such switch or signal, the time held at such point will be added to any time calculated as final terminal delay."

The Organization has argued before this Board that claimant, a pre-1985 employee, arrived at his final terminal at 12:40 AM and went off duty at 2:00 AM, for a total final terminal time of 1 hour and 20 minutes. After deducting 60 minutes as required by Article V of the 1985 National Agreement, claimant properly submitted a claim for 20 minutes final terminal delay.

It is the position of Carrier before this Board that Rule 33(f) of the governing agreement applies, and the Board will note such rule reads as follows:

" (f) Terminal time will not be paid on short unscheduled runs in addition to constructive mileage."

(NOTE: There is no definition of what the parties meant by the term "short unscheduled runs.")

Carrier argues that crews working on freight runs less than the 122 mile basic day are not entitled to terminal delay unless the terminal delay time, converted to miles, exceeds the basic day minimum. In the instant case Carrier concludes that the 18 constructive miles paid for in addition to the 104 miles actually run (so as to arrive at the 122 mile basic day in effect on date of claim) could be offset by the amount of time or miles paid for final terminal delay.

In arriving at its conclusion Carrier places an interpretation on the language "short unscheduled runs" appearing in Rule 33(f) to mean runs of less than the mileage now contemplated by the basic day.Award No. 130 -3-

There is no dispute over the fact that 100 miles constituted the basic day for many years and that the mileage contemplated in the basic day has been gradually increased in recent years as a result of National Agreements. At the time this claim arose 122 miles equaled a basic day.

It is the position of the Organization that the actual run from Speer to Denver was 104 miles, 4 miles in excess of the 100 mile basic day; therefore, prior to any increase in the basic day, the pool involved in this claim was allowed final terminal delay without deduction based upon the actual miles of this run. It also offers the argument that Rule 33 (f) was never intended to be applied to pool freight service; i.e., the pool operating between Denver and Cheyenne is not considered a short run. It is also noted that the Organization takes the position Rule 33 (f) was eliminated by the adoption of Section 5 of Article V of the 1985 National Agreement.

Based on the record before this Board, it is our finding that Rule 32 (f) , relied upon by Carrier, does not apply to the operation of Train LADET-27. Having so found, it must follow that Carrier erred in its reason for denying this claim. Article V of the 1985 National Agreement, which amended Rule 33(a) as set forth hereinabove, specifically provides that "all time in excess of 60 minutes *** shall be paid for as final terminal delay." Inasmuch as the final terminal delay here before this Board was 1 hour 20 minutes, claimant was entitled to be paid for such 20 minutes in accordance with the agreement provisions.

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

F. T. Lynch, Neutral Chairman

Catherine J. Sosso, Carrier Member

A. Martin, Employee Member

Award date: 9/14/00