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RULES EXAMINATIONS

    Public Law Board 4675, Award 56, provides for compensation for UPED train and yard service employees required to attend Operating Rules examination classes.

    The intent of this Award is that, whenever possible, employees will be provided an opportunity to attend these sessions during their off-duty time and  be compensated for the time spent doing so.  To that end, the Carrier is required to make reasonable efforts to schedule rules exams so that ample opportunities exist to attend these sessions during off-duty periods.

    The Award specifies pay for time consumed during the class, with a minimum of four hours and overtime for time in excess of eight hours.  This applies to classes taken during an employee's off duty time.

    In the case of employees who are not afforded an opportunity to take the rules exam during their off-duty time, through no fault of their own, compensation will be for all time lost as a result of being required to miss work in order to take the exam.

    It must emphasized that in order to be paid time lost or a make-whole for taking the rules exam the burden of proof for not attending the session during off-duty time rests with the employee so affected.  The Award requires the Carrier to post a schedule of examination sessions at least 20 days in advance of the scheduled classes so that those affected can determine when to attend during their off-duty time.

    If the schedule provides no opportunities to take the rules exam during off-duty time then a copy of the examination schedule and a copy of the employee's work schedule must be preserved to support the claim for lost time.  This is the responsibility of the person who is making the claim.  If the claim is not paid upon receipt of the initial claim then these documents must be given to the Local Chairman along with the declination so that he or she can make a proper appeal for the lost time.  If it cannot be demonstrated that the employee was required to lose time in order to take the exam then the Carrier will not pay the make-whole.

    The documentation must clearly indicate that the time was lost through no fault of the person making the claim.  Excuses such as forgetting about the exam, waiting until there are no vacant slots, other activities during off-duty time, or most other reasons will not support the claim and will result in being paid only time consumed for taking the rules exam.

     Following is the text of the Award:

  

PUBLIC LAW BOARD NO. 4675

Case No. 56
Award No. 56


Parties to dispute:  

United Transportation Union

and

Union Pacific Railroad Company

Statement of claim:

Claim of Cheyenne brakeman R. L. Braunschweig for a basic day account taking his biennial rules re-examination on October 31, 1991; and claim of Cheyenne brakeman. J. H. Rottman for lost time (S278.80) account taking his biennial rules re-examination on November 18,1991.

History of dispute:

          In 1983, claims were progressed by the Organization in the dispute at hand for compensation when employees were required by the Carrier to attend mandatory rules reexamination classes and pass a written rules examination. The dispute was presented to Public Law Board No. 3736, which sustained the Organization's position, holding in pertinent part (Award 2):

  "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 arc 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 compen sation 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."

                   In the early part of 1991, Carrier advised all operating labor organizations that it would begin a new operating rules examination program and that it would require em ployees to attend in their off time. If the employee could not attend other than losing time, Carrier advised it would pay a basic day, but employees must document the reason for not attending in their off time.

          Carrier's senior operating management, however, advised it desired to have ar rangements to pay employees lost time if they were required to be absent from their nor mal service, and, for all others, a minimum half basic day payment. Agreements were subsequently reached with operating labor organizations which did not have compensa tion rules. An agreement with the Organization in this dispute was never achieved.

          As a result of Carrier's new policy, and the fact that the parties could not reach an agreement for such payments, polarized views were adopted. The Carrier denied all compensation, and the Organization progressed claims for various payment levels. Now, before this Board, are two cited examples of claims: One for a basic day, and the other for lost time.

Opinion of Board:

          In the Organization's view, Award No. 2 of Public Law Board No. 3736 resolved the question of compensation. This Board disagrees; the Award was not sufficiently specific. The Carrier, in turn, pleads the Award is erroneous, and compensation must only be allowed if there is a collective bargaining agreement. Again, this Board disagrees: The Award, in part, established compensation.

          This Board is aware of the arbitral law concerning its jurisdiction on rules disputes, and by the specific Agreement language establishing this Public Law Board, which says:

          "The Board will not have authority to change existing agreements or establish new rules."

          This Board, however, is guided by well-established arbitral law in the industry which has addressed past practice absent Agreement rule(s): First Division, 8254 Simmons:

          "To the extend the rules do not provide for this situation the established and ac cepted practice on the Carrier not shown to be contrary to existing rules prevails."

          Given the above, employees on the territory in question will be compensated for attending rules/examination classes (provided they successfully complete same), as follows:

      1. Employees will be required to attend Instruction-Examination Classes cover ing Operating rules, Special Instructions, General Orders, General Notices, Safety, Radio, General Rules, Air Brakes and Train Handling Instructions, and Instructions for Handling Hazardous materials.

     2. Employees required to attend the aforementioned Instruction-Examination classes will be paid in one of the following manners:

               (a) During off-duty hours, employees, regular or extra, will be paid for the time required to report until released, with a minimum of four (4) hours at the basic pro rata rate of the last service performed, with overtime being paid after eight (8) hours.

               (b) Employees who are not afforded an opportunity to attended class dur ing their off-duty hours will be paid for all time lost.

              (c) If an extra employee is held from regular assignment, he/she will be entitled to what he/she would have earned on the assignment for such time as he/she is eligible to hold it.

     3. Employees will be given at least 20 days advance notice of the available Instruction-Examination classes which will include the dates and time in which Instruction-Examination Classes will be held. An employee must attempt to attend a class during his/her off-duty hours unless such advance notice of classes clearly indicates that the employee will not be afforded such opportunity.

     4. Employees required to attend Instruction-Examination classes at other than their home terminal will be reimbursed for necessary auto mileage at the pre vailing rate for the use of personal automobiles, in addition to the pay pro vided in Paragraph 2 of this Award. Employees will also be reimbursed for any necessary lodging and/or meal expenses, if prior approval has been granted by the Carrier.

     This Award governs compensation for all claims of record and/or all employees
who have completed their Operating Rules re-examination without compensation.

     We must point out to these and any and all other parties that this Award is not in-
tended for precedent in other cases, for it is doubtful that any other situation would have
the identical combination of factors considered here.

Findings:

     Claims determined as outlined in Opinion of Board.

Award:  

     Claims sustained as outlined in Opinion of Board.


Dated this 26th day of September, 1996, at Omaha, NE.

John B. Criswell, Neutral Member

Lynn Lambert, Carrier Member

G. A. Eickmann, Organization Member