PUBLIC LAW BOARD NO. 5680

United Transportation Union
                                                                                                                   AWARD NO. 9
- and -                                                   CASE NO. 9

Union Pacific Railroad Company

Claim of Conductor D. G. Bourn for a rate difference of $16.95 account worked outside the 25-mile zone, plus claim for an additional 100 miles under Schedule rule 67 on May 26, 1994.

This Public Law Board No. 5680 finds that the parties herein are Carrier and Employee, within the meaning of the Railway Labor Act, as amended and that this Board has jurisdiction.

On May 26, 1994, the Claimant, Conductor Bourn was called at his home terminal, North Platte, for an on-duty time of 2:30 p.m. to perform short trips and turn-around service under the provisions of UTU Rule 31-Zone Rule which states as follows:

RULE 31 - ZONE RULE. Conductors and brakemen in pool or irregular freight service may be called to make short trips and turn-arounds with the understanding that one or more turn-around trips may be started out of the same terminal and paid actual miles with a minimum of 100 miles for a day, provided (1) that the mileage of all the 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 conductors and brakemen 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 or practice.

Rule 31 contains restrictions limiting the Carrier's use of the Zone Rule, including restriction "(2)" which states that the distance run from the terminal to the turning point not exceed 25 miles. The first assignment given by the Carrier to the Claimant was to dogcatch the CNQBN, which was located some 24 miles beyond the 25-mile zone. Such an assignment exceeded restriction "(2)" of Rule 31 of the Agreement.

Conductor Bourn returned to North Platte with the CNQBN train and subsequently departed a second time at 6:45 p.m. to pick up the 2CNWNA-24 within the 25 mile zone. Claimant returned to North Platte and tied up at 10:00-p.m. Claimant was on duty for 7 hours and 30 minutes. Conductor Bourn submitted two time slips to the Timekeeping Bureau. On his first time slip, he claimed a basic day for working within the 25-mile zone and a basic day for working outside the zone. On Claimant's second time slip, he claimed an additional basic day contending he was automatically released due to running outside the 25-mile zone. The Carrier's Timekeeping Department allowed the Claimant $114.71, which is equivalent to a basic day at the current rate plus $97.76 which is equivalent to a basic day at the October 31, 1985, frozen rate, plus a short crew allowance of $12.36; the remainder of the claim was rejected.

While the Carrier's Director of Labor Relations in his March 29, 1995 letter characterized the payment of $97.76 as "48 actual miles run outside the zone - $46.92 - overmile rate * 52 miles paid not run outside the zone - $50.84 - overmile rate", clearly the Carrier violated Rule 31 in running the Claimant 24 miles beyond the 25-mile zone when the Claimant was used to dogcatch the CNQBN train and a minimum basic day payment is in order for exceeding the contract restriction in this case. The Organization has taken the position that Article IV, Section 5 of the UTU National Agreement did not intend that such payments under Rule 31 would be paid at the frozen rate. It cites the parties questions and answers to Section 5, Question and Answer 1 as authority for its position. Surely a payment for running the claimant 24 miles beyond the 25-mile zone in direct conflict to the restriction of Rule 31 is not a duplicate time payment within Section 5 of Article IV. The Carrier's position that miles worked outside the zone were properly paid at the overmile rate of pay is rejected for the service in excess of the restriction in the instant case was not mileage run in excess of the miles comprising a basic day under Article IV, Section 1 (a). We shall sustain the claim for the $16.95 difference, as claimed.

The Organization has not met its burden of proof that Rule 67, the Automatic Release Rule, has ever been applied to employees called under Rule 31, under any circumstances, nor does the rule itself support such an application, and we must decline to apply it to the instant case. The Claimant's request for a third basic day based on Rule 67 is thus rejected.

We have reviewed the two on-property settlements dated June 18, 1982 involving Rule 31 25-mile zone violations. A claim for the date of February 5, 1980 sought 200 miles for work performed on that date including an additional claim for a new day for all miles run outside the zone, rather than the amount previously allowed. And, by letter dated June 18, 1982 from the Director of Labor Relations, Claimants were allowed 200 miles in lieu of 153 miles previously allowed. On February 8, 1980 a crew called to perform short trips and turn-around service somehow was run 75 miles beyond the 25-mile zone in violation of the contract, resulting in 150 miles being run outside the zone, which exceeded the basic day outside the zone. By letter dated June 18, 1982 the Director of Labor Relations paid the crew as follow:

"Claimants will be allowed 100 miles for being used under Rule 31; 150 miles outside the zone, 2'35" initial delay at Sidney, and 40" final delay at Cheyenne. This is a total of 290 miles. They were previously allowed 247 miles. An adjustment of 43 miles will be made."

Consistent with these prior claim settlements and past practice of payments made by Timekeeping, the Board agrees that claimant in this case as well as all others in the future must be allowed the greater of the miles worked outside the zone with a minimum of a basic day. Payment will be at the basic rate for all miles up to the basic day and at the mileage rate for miles in excess, as prescribed in the 1985 National Agreement. As a note, the crew begins a new day upon departing the zone and time continues until released from duty.

It should be made very clear that Rule 31 has restrictions and when Carrier exceeds such, proper payments must be made. The Carrier has the right to call crews under certain rules based on "the most economically and efficient operational needs." Situations may occur that a train a Zone -Rule crew is called or assigned to dogcatch does not make it into the 25-mile zone, as originally and reasonably anticipated by Carrier's Train Management, and the assigned Zone crew will fulfill their assignment, and at least a basic day payment for exceeding the restriction will be paid. The Carrier's Train Management should not arbitrarily call a crew under Rule 31 when it knows with reasonable certainty that it would be assigning the crew to work which will exceed the restrictions of Rule 31. However, if such call is made, Carrier must accept the additional costs associated therewith which clearly is not "the most economical and efficient way of meeting its operational needs". The rule by its clear language was intended only for short trips and turn-arounds with very specific limitations. The additional payments for exceeding their restrictions in Rule 31 is not only to enforce the integrity of the rule but also to point out to Carrier's Train Management of its expensive and inefficient way of meeting a minor operational problem.

As a final note, and while it is not part of the claim in this case, is the Organization's serious concern that Carrier's Train Management will totally disregard on a consistent basis the proper rule application to utilize when a dogcatch is required outside the zone. To that this Board must counsel the Carrier that if a consistent pattern is established, this board may well fashion an appropriate remedy which could exceed the current claim payments as set forth herein.

AWARD
As per Findings

ORDER: The Carrier is required to comply with this award within thirty days.

DATED: 2/28/97