In the Matter of Arbitration between

UNION PACIFIC RAILROAD COMPANY

AND

THE UNITED TRANSPORTATION UNION

SPECIAL BOARD OF ADJUSTMENT
BY AGREEMENT DATED AUGUST 10,2005

CASE1
AWARD 1

"Was it proper for the Carrier to deny guarantee payments to Trainmen T.R. Knowles when he strategically used layoff and compensated leave privileges to receive extra board and/or supplemental extra board guarantee benefits contrary to the availability principle contemplated in the extra board/supplemental extra board guarantee?"

"Was it proper for the Carrier to deny guarantee payments to Trainman T.R. Knowles due to the method compensated leave privileges were taken while on the guaranteed extra board?"

This case involves the relationship between compensated off days such as personal leave days and vacations and Guaranteed Extra Boards and Supplemental Extra Boards. Through the negotiation of Crew Consist agreements and various on property agreements the parries allowed employees to take time off with pay in one day increments. The parties have also negotiated extra boards and supplemental extra boards that guarantee an employee a fixed amount of earnings for a pay period if the employee stays available for work.

On this property Personal leave days were established as part of the 1980 Crew Consist Agreement. Personal leave days were granted based on the years of service of the employee. Under the 1980 Agreement, personal leave days were only allowed to be taken on a scheduled work day of an employee. On December 1,1988 the number of personal leave days was increased by one day. Side Letter 3, dated September 5,1996 amended the Personal Leave Agreement to allow an employee to take a personal leave day on his off day. This letter is reproduced below:

"This refers to the parties' discussions regarding changes to applicable Agreement provisions governing the granting and taking of personal leave days in connection with the modification of existing Crew Consist Agreement provisions on the T&P.

The parties agreed to amend Article 22(d) of the Crew Consist Agreement dated May 17,1980 to provide for the following in connection with the taking of personal leave days:

1). Personal leave day or days may be scheduled or allowed to start on other than a work day of the employee's position.

2). An employee requesting personal leave day or days will be advised by the Carrier at the time of such request whether the employee will be allowed to take the personal leave day or days.

3). At the time an employee is making the request for personal leave day or days, such employee must advise CMS whether he/she desires to have the personal leave day or days commence, if approved, immediately - i.e., at the time of the request- or at the time said employee would have otherwise been called for duty.

4). If an employee requests more than one personal leave day, the days granted will commence at either the time of the request or when the employee would have otherwise worked, as approved by the Carrier, and will run consecutively for twenty four (24) hours for each personal leave day requested and for which approval was granted.

The foregoing provisions are intended to facilitate an employee's use of personal leave days and are not intended to encourage or facilitate sharp practices. Accordingly, it is agreed that in the event the foregoing provisions provide mechanisms for employees to engage in sharp practices, the parties, including the involved Local Chairman, will promptly meet to discuss and address such practices."

Single day vacations became available with the implementation of the December 5,1995 letter agreement. The agreement allowed employees in road and yard service to take one week of their vacation one (1) day at a time. The January 1, 2003 Vacation Agreement increased the availability of taking single day vacations from one week of vacation to three weeks of vacation. This agreement contained a Savings clause which provided:

"A. The increasing vacation opportunities and flexibility as set forth herein shall not cause Carrier to incur any additional employee protection expense or guarantee payments as a result thereof."

On July 24,2004 the parties established the Automatic Mark Up Agreement. It provided:

"1. Trainmen/switchmen/firemen/hostlers will be automatically marked up for service upon expiration of any period of time off (absence) authorized or approved by UP on account of personal illness, Family and Medical Leave Act, personal leave days, vacations, or any time off.

Guaranteed extra boards were established with this committee pursuant to the December 1,1988 Crew Consist Agreement and the January 18,1989 Crew Consist Agreement. On September 5,1996 the parties entered into an agreement that addressed among other issues, the operation and administration of Guaranteed Combination Extra Boards and Supplemental Extra Boards. Thereafter, all Conductor and Brakeman Extra Boards (guaranteed or non-guaranteed) were eliminated and replaced by Guaranteed Combination Road Extra Boards. In addition Guaranteed Yard Extra Boards were established to protect Foreman, Yard Helper, Hostler, Hostler Helper and Yard Utility positions. These agreements provided employees assigned to these Extra Boards would be called to protect vacancies when regular assigned employees are granted time off for various reasons.

In addition, Supplemental Extra Boards were established as a reserve source of employees for the Road or Yard Extra Boards. Supplemental Extra Board employees are to be called for service only when employees from the Combination Road or Yard Extra Board are all working or are not rested for service.

Employees assigned to Combination Road/Yard Extra Boards are guaranteed fixed amounts per pay period subject to availability. Employees assigned to the Supplemental Extra board are guaranteed 85% of the applicable Guaranteed Combination Extra Board or Guaranteed Combination Road/Yard Extra Board. If an extra employee remains available for service the entire pay period but earns less than' that fixed amount, the difference between what was actually earned and the fixed amount is paid as guarantee.

An employee who is available less than the number of days in the pay period has his guarantee reduced. The provisions of the agreement stating how the guarantee will be reduced are as follows:

J. All earnings, excluding penalty time claims, received by employees assigned to Guaranteed Combination Road extra Boards, Guaranteed Combination Road/Yard Extra Boards or Guaranteed Yard Extra Boards will be used in computing the employees guarantee. An employee assigned to a Guaranteed Combination Road Extra Board, Guaranteed Combination Road/Yard Extra Board or Guaranteed Yard Extra Board laying-off on call, missing call or not available for service will have his/her guarantee reduced by the amount he/she would have earned had he/she not laid off on call, missed call or not been available for service, with a minimum of one (1) guarantee day.

K. Employees assigned to Guaranteed Combination Road Extra Boards or Guaranteed Combination Road/Yard Extra Boards who miss a call when other than first-out will have then- guarantee reduced by one (1) day for each 24-hour period or portion thereof they are off the board,

EXAMPLE: Conductor A is first out and Conductor B is second out. Conductor A missed call for a 7:00 a.m. local. Conductor B also missed call for the 7:00 a,m. local. Conductor's A guarantee is reduced under the provisions of Paragraph J above and Conductor's B 's guarantee is reduced under the provisions of Paragraph K above.

L. (1) Employees assigned to a Guaranteed Combination Road extra Boards, Guaranteed Combination Road/Yard Extra Boards marking off will not lose their place on the guaranteed extra board unless they are not available at call time. At call time, employees in marked off status will be "hooked" to the assignment missed and will forfeit one (1) day's guarantee for each 24-hour period thereof they are laid off from time first marked off.

NOTE: Employees marking off will not have their names removed from the extra board until call time when they are first-out.

(2) For employees assigned to Guaranteed Yard Extra Boards, existing yard rules in connection with laying off are unchanged and yard employees marking off will forfeit one day's guarantee for each 24-hour period or portion thereof they are marked off and not available for service.

(3) An employee who is assigned to either a Guaranteed Combination Road Extra Board, Guaranteed Combination Road/Yard Extra Board or Guaranteed Yard Extra Board who lays off or is unavailable for service on more than two (2) occurrences in a pay period will forfeit his/her guarantee for that pay period.

The following agreed to Questions and answers from the September 5,1996 Agreement applies to both Guaranteed Combination extra Boards and Guaranteed Supplemental Boards:

Q-8. Under the provisions of Article I, Section L. Paragraph 3, what incidents or events will not count toward the two (2) occurrences of being unavailable resulting in forfeiture of the guarantee?

A-8 Personal leave time, vacation time, absences at the request of the Carrier (e.g. court appearances and depositions, investigations, etc.) and Local chairman on union business.

Claimant T.R. Knowles was assigned to either the Switchman's Extra Board (XS85) or the Switchman's Supplemental Board (ST85) at Shreveport, Louisiana from November 24,2003 through January 31,2004, During this period (68 days) the claimant did not perform any service. Claimant was assigned to the extra board (XS85) at Shreveport for four days during the second pay period of November 2003. The remaining eleven days of that pay period he was assigned to the supplemental extra board. During the second period of November he worked three tours of duty, the 20th, 22nd and 23rf. The claimant had $478.95 in working earnings and was paid $1203.71 in supplemental board guarantee and $ 245.64 in extra board guarantee for a total of $1928.30.

During the first pay period in December 2003, the claimant remained on the supplemental board. He performed no service but took two personal leave days on December 9 and 10. He was paid $320.40 for the personal leave days and guarantee payment of $1988.60 for total earnings for the pay period of $2309.00. During the second pay period in December 2003, the claimant was assigned to the supplemental board through December 25 when his assignment was changed to the switchman's extra board. Claimant laid off sick from December 20 to December 23. The claimant performed no service in this pay period but received guarantee payments totaling $1436.15.

From January 1 to January 23,2004 the claimant was assigned to the switchman's extra board. From January 23 to the end of the month the claimant was on the supplemental board. Claimant took four single days of vacation on January 4, 9,13 and 14 during the first pay period and took another four single days of vacation on January 16,17,20 and 21. He also took two personal leave days on January 26 and 27. The claimant did not perform any service in either pay period. Claimant was paid $ 573.64 in guarantee for the time assigned to the supplemental extra board during the second period of January. His claim for guarantee while assigned to the extra board from January 1 through 23,2004 totaling $1,696.43 was declined.

The Organization protested the Carrier's decision not to pay the claimant's extra board guarantee for January 1 through January 23. The Organization stated that the claimant was marked up and available during the time period or took personal leave or vacation time that was authorized and approved by Crew Management System. The Organization further argued that CMS retained the right to deny the claimant a vacation day or personal leave days under manpower provisions. They concluded that the Carrier declined payment of guaranteed benefits after they authorized a vacation or personal leave day for the claimant.

The parties have had several discussions over this issue. The Carrier maintained that the claimant intentionally and strategically evaded each and every work obligation during the month of January. By doing so, the Carrier stated that the claimant did not keep with the intent of the Extra Board and Supplemental Extra Board guarantee provisions and it was justified in its denial of the claimant's extra board guarantee. The Carrier paid the guarantee in question upon special request from UTU Vice President Futhey. The payment was made with the understanding that the basic issue in dispute would be subject to arbitration and that the payment did not prejudice the Carrier's position before this Board.

The Carrier argued that the guaranteed income provided employees on the Guaranteed Combination Boards and the Supplemental Extra Boards is one-half of an equation. The other half of the equation or the quid pro quo for the guarantee is the obligation of extra board and supplemental extra board employees to remain available for call. The Carrier stated that there is no dispute that the purpose of the September 5,1996 Agreement and its related guarantees are designed both specifically and implicitly to assure that an extra employee will perform service as intended and when needed. The Carrier stated that the guarantees were established based on the fundamental principle of the employer-employee relationship that an employee works in exchange for pay and not to compensate an employee for the time his service is not needed. The Carrier concluded to hold otherwise would damage the integrity of the rule, place undue hardship on employees who hold to an honest standard and inhibit the Carrier's ability to provide efficient reliable service.

The Carrier argued that there are employees who are "sharpshooters" who are always looking for an opportunity to twist the contract language to avoid the intent of the negotiators and to gain an unwarranted advantage. In the case of Extra Board and Supplemental Extra Board guarantees, the 'sharpshooter" will manipulate the board and take compensated time off to maximize his time on the board while simultaneously avoiding any work obligation. The Carrier stated that it is not obligated to reward sharpshooting and other employees should not have to shoulder the unnecessary burden of the self-serving practice.

The Carrier stated that claimant T. R. Knowles was a "sharpshooter" who prided himself on getting paid for not working. The Carrier noted that the claimant was either assigned to the Switchman's Extra Board or the Switchman's Supplemental Board at Shreveport from November 24,2003 through January 31, 2004 but during this 68 day period did not perform any service. As noted above during the twenty-two (22) days in January 2004 when the claimant was assigned to the extra board, he took eight single days of vacation on January 4,9,13,14,16,17, 20 and 21,2004, The Carrier argued that these layoffs were so strategically placed that he did not perform any service.

The Carrier stated that Employee Status and Phone records clearly illustrated that a series of strategic layoffs and markoffs by the claimant were calculated to maximize his extra board guarantee while intentionally evading and avoiding any and all work obligations upon which the guarantee is based. During the 22 days in question the claimant called the Carrier's Automated Voice Recording (AVR) System 90 times. The Carrier further noted that for the entire month of January he made 138 calls to the AVR system.

The Carrier argued that the abundant number of calls to the AVR system and the times of those calls are indicative of several fundamental truths. First, the claimant is not interested in securing proper rest before going to work because he knows he is not going to work. Second, the sole purpose of this activity is to time his layoff to avoid service while maximizing guarantee. Finally, if the purpose of the agreement was to enable and employee to avoid service with impunity and receive guarantee why was it necessary for the claimant to call 322 times for his board standings. The Carrier concluded that these points clearly show that the claimant was a "sharpshooter".

The Organization does not agree that the claimant's behavior was "sharpshooting" the agreement. The Organization stated that calls to the AVR system is not proof of sharpshooting. They stated that the agreement allows employees to start Personal Leave at the time they would have stood to work so why would the claimant have to call to ensure that he would be off at the right time.

As previously stated, the Organization argued that the claimant was marked up and available during the time period or took personal leave or vacation time that was authorized and approved by Crew Management. The Organization pointed out several provisions in the agreement that stated either the Carrier must approve Personal leave days or preserves the right to deny requests for personal leave. They also noted that the July 24,2004 Automatic Mark Up Agreement provided that time off must be authorized or approved by UP. The Organization concluded that the Carrier retained the right to deny the claimant a vacation day or personal leave days under manpower provisions.

The Organization also argued that the purpose of single day vacation was to allow employees to take time off when it was slow. In this case the claimant took vacation time when it has historically been slow and the Board has not turned. They stated that this benefited the Carrier as the employee used his time off in a slow period. The Organization made a presentation that showed that the Carrier saved money by the claimant taking vacation as otherwise he would have been made more guarantee during the period in question. They stated that the Carrier did not show that it was harmed by the claimant's actions. 

The Organization also stated that the workings of the supplemental board kept the claimant from working. They noted that the agreement provides that an employee who is first-out on the Supplemental Extra board will automatically rotate to the bottom of the board at noon. Since this board does not turn quickly, the Organization stated that this provision contributed to the claimant not working.

Finally, the Organization stated that the Carrier has the obligation to show that the claimant was a sharpshooter. They argued that the Carrier did not provide any information to show that the claimant would have worked on these dates. They stated that the Carrier had to show where the claimant would have worked and failing to do so they failed to prove that he was a sharpshooter.

The Organization argued that even if the claimant was guilty of sharpshooting the intent of the agreement is clearly spelled out by the parties. They stated that the agreements in place are clear and unambiguous. Personal leave days and vacation days do not count as occurrences for the purposes of denying guarantee payments on both the Guaranteed Extra Boards and Guaranteed Supplemental Boards. The Organization argued that Question and Answer Number 8 of the September, 1996 Crew Consist Agreement is controlling in this dispute. It stated:

Q-8. Under the provisions of Article I, Section L. Paragraph 3, what incidents or events will not count toward the two (2) occurrences of being unavailable resulting in forfeiture of the guarantee?

A-8 Personal leave time, vacation time, absences at the request of the Carrier (e.g. court appearances and depositions, investigations, etc.) and Local chairman on union business.

The Organization stated that the Carrier violated this agreement in the instant dispute when the guarantee was improperly forfeited. The Organization concluded that the authors of the agreement were very specific and had there been any exception, one would have been noted. As there were no exceptions noted, the Carrier's actions were improper.

The Organization further stated that in very limited conditions the Carrier can deduct additional guarantee paid when a guaranteed employee takes on single day of vacation in the second and third week of single day vacations. This is provided for in Article V, Section A of the January 1,2003 Vacation Agreement. The Organization noted that even this did not allow the Carrier to forfeit the entire guarantee but only defray the expenses of the additional guarantee. The Organization further pointed out that this only applies to the second and third week of vacation and does not apply to Personal Leave days or the first week of single day vacations.

Finally, the Organization stated that the provisions of Side Letter 3, dated September 5,1996 that amended the Personal Leave Agreement to allow an employee to take a personal leave day on his off day provided a mechanism to settle disputes concerning sharpshooting. It stated:

. The foregoing provisions are intended to facilitate an employee's use of personal leave diays and are not intended to encourage or facilitate sharp practices. Accordingly, it is agreed that in the event the foregoing provisions provide mechanisms for employees to engage in sharp practices, the parties, including the involved Local Chairman, will promptly meet to discuss and address such practices."

The Organization stated this clearly showed that the Carrier should have called a meeting and not offset the guarantee. They concluded that from all the evidence the Carrier did not have the contractual right to offset the guarantee.

The Carrier disagrees with the Organization's interpretations of the agreement. The Carrier stated that Side letter No. 3 of the September 5,1996 agreement established that the parties intended from the outset that they would not tolerate sharpshooting. The Carrier further stated that Article V of the December 12, 2004 Agreement extending single day vacation which stated:

"A. The increasing vacation opportunities and flexibility as set forth herein shall not cause Carrier to incur any additional employee protection expense or guarantee payments as a result thereof."

was further proof that the parties continued to negotiate anti-sharpshooting provisions in the agreement. The Carrier argued that there can be no doubt of the meaning of this language and that the Carrier and the Organization have an obligation to faithfully observe the intent of the agreement.

The Carrier further argued that the fundamental rule of contract interpretation supports the Carrier's decision to deny guarantee payments to the claimant. The Carrier cited a portion of the Handbook of the Law of Contracts by Laurence P. Simpson to illustrate Us position. The pertinent part read:

"The cardinal or fundamental rule of interpretation of contracts to which all others are subordinate, is that a contract should receive that interpretation which will best effectuate the intention of the parties. To ascertain that intention the writing will be read as a whole; and in the case of several contemporaneously executed instruments relating to the same transaction, all of them will be read together. Intention is not to be collected from detached portions of the agreement; but individual clauses and particular words are to be construed in relation to the main purpose to be effectuated. Moreover, it is the intention that is expressed in the contract that controls, not an intention secretly cherished by one of the parties. 'Greater regard is to be had to the clear intent of the parties than to any particular words that may be used in the expression of their intent."'

It should be noted that most of Professor Simpson's language came directly from court decisions footnoted in his work. The Carrier argued that there can be no doubt that the parties intended to prevent sharpshooting.

They argued that the Organization's reliance on Question and Answer No. 8 of the September 5,1996 Agreement is not consistent with the overall intent of the agreement. The Carrier stated that Q and A No. 8 did not give an employee a free ride. To hold otherwise would override the true purpose of the September 5,1996 Agreement and its related guarantees. The Carrier stated that they were designed both specifically and implicitly to assure that an extra employee will perform service as intended and when needed. The Carrier stated that the guarantees were established based on the fundamental principle of the employer-employee relationship that an employee works in exchange for pay and not to compensate an employee for the time his service is not needed. They stated that their interpretation is consistent with Side letter No. 3, Article V and Q and A No. 8 and that the Organization's interpretation is not.

The Carrier presented numerous arbitration awards to support its position. They stated that these awards dealt with similar situations and in each case the arbitrator recognized the sharp practice and denied compensation. They stated that these awards are on property and directly on point. In cited Award 124 of Public Law Board 1160, Neutral David H. Brown stated:

"The integrity of the seniority system is essential to proper administration of the Agreement. Justice and common sense are co guardians of the seniority system, for it is the most equitable as well as the most workable method known. But justice, while said to be blind, should not be regarded as stupid, and common sense associates earnings with work and not with windfall...

We find that Claimant's inordinate exercise of seniority is inconsistent with a claim of guaranteed earnings. In electing to repeatedly bump fellow employees on their days off, Switchman Norberg waived any claim for guaranteed earnings."

The Carrier also cited First Division Award 24512, Award 11 of Public Law Board 4848 and Award No. 12 of Public Law Board 6719. Finally, the Carrier in its correspondence on the property as well as in its submission cited the findings in Decision No. 5503 of Special Board of Adjustment No. 18. In this award Neutral Gil Vernon held:

"The Guarantee Rule was historically framed against a background of expectations each party had of the other... The quid pro quo of trainmen availability for a guaranteed income is implicit in the rule."

"... The pro-rata feature of the second paragraph... if applied without regard to evasive actions, would negate the true intent of the rule... the record shows that the claimant made a series of layoffs and markoffs which conveniently attempt to reap the rewards of the Guarantee Rule while evading the 'availability' principle as contemplated by the rule..."

The Carrier further noted that in Decision 5503 Referee Veron cites language from decision 3636 of the same Board. This cited portion:

" The series of' lay offs' and 'mark-ups' by claimant.. .indicates to the majority of the Board that claimant was, in fact, 'sharpshooting' with considerable success... we do not propose to allow the careless choice of a word or two to defeat the purpose of an agreement intended to make every conductor on the division... deal fairly with his brother conductor."

The Carrier stated that these awards supported its position that H was not the parties' intent to allow employees to engage in sharp practices and collect a windfall of guarantee compensation without any obligation on the part of the employee to protect service.

The Organization stated that Decision 5503 of SBA No. 18 dealt with non-compensated absences of the claimant and there is not controlling language as to when the guarantee is offset as there is in this dispute. The Organization further argued that the present case is distinguishable from the other awards as they dealt with the unknown and the present agreements outline when guarantees can be offset

The Carrier concluded its argument that any attempt to place the blame on the Carrier as it as control of layoffs is without merit. The Carrier stated that any suggestions to deny authority to mark off or discipline the sharpshooter are disingenuous and avoids the main issue. The Carrier stated that the Organization had the contractual obligation to prevent sharpshooting. They stated that relevant contract language, fundamental contract interpretation and arbitration precedent supported its position to deny guarantee payments to the claimant.

The Board after considering both parties arguments must decide two questions when considering whether the claimant was guilty of sharpshootmg. First, the Organization stated that the claimant's absences were all authorized and approved by the Carrier and the Carrier can not take exception to them. Second, was there enough evidence presented to show that the claimant's activities were sharp practices.

Numerous tribunals have ruled on the Carrier's right to expect employees to work on a regular basis and how it is affected by the railroad's system of marking off. The Eight Circuit in a case cited by the Carrier issued a decision that is exemplary of decisions on this point. The court held:

"[The employee] contends that because the railroad allows an employee to "lay off' of working any day of his choosing, this procedure makes his use of the practice a non-issue. We disagree. This court has consistently held that "regular and reliable attendance is a necessary element of most jobs." [cites omitted] "Even though the railroad's system of scheduling appears quite flexible, the railroad's policy requires regular, reliable attendance and Pickens' conductor's job was full-time. Pickens' choice to lay off twenty-nine times from October 1995 to August 1996 is excessive and eviscerates any regularity in his attendance. "An employee who is unable to come to work on a regular basis [is] unable to satisfy any of the functions of the job in question, much less the essential ones."

While this decision rules on a case involving the Americans with Disabilities Act, the above language is directly on point with the argument mat the Carrier's approval or authority does not excuse an employee's behavior when he fails to protect the employment requirements of his job. This Board agrees with the above citation and the Carrier can take exception to an employee's excessive absences that have previously been allowed by crew management.

The Board finds that the claimant's actions in this case did amount to sharp practice. The evidence presented by the Carrier was sufficient for a reasonable man to conclude that the claimant was attempting to avoid work. The mere fact that the claimant took eight single days of vacation on January 4,9,13,14.16,17,20 and 21, 2004 during the twenty-two (22) days hi January 2004 when the claimant was assigned to extra board was prima facie evidence that the claimant's behavior was suspicious. This coupled with the fact that the claimant made 90 telephone calls to the AVR system to determine his position on the board contributes to the conclusion that the claimant was involved in manipulating the agreement to his benefit. Finally, the fact that the claimant did not work at all for the entire month of January 2004 as well as a 68 day period from November 24, 2003 through January 31, 2004 helped the Board reach its conclusion.

Also, the Board believes the purpose of single day vacation and allowing personal leave days on other than a work day was to allow an employee to take care of personal business or family obligations that are difficult to achieve when protecting a pool or extra board assignment 24 hours per day. There was no evidence produced to show that the claimant was engaged in any important activity during this time frame. If the claimant or a member of his family had a serious medical problem during this period, there are other avenues available to handle such problems.

The Organization argued that the Carrier did not provide any information to show that the claimant would have worked on these dates. They stated that the Carrier had to show where the claimant would have worked and failing to do so they failed to prove that he was a sharpshooter. The Organization also stated that the Carrier had to prove that it paid additional guarantee payments as a result of the claimant's actions. While such evidence would have added to the Carrier's argument and may be necessary in other cases, the Board finds that the Carrier produced sufficient evidence to support its position. The Board's position is supported by awards cited by the Carrier. In Award No. 24512, the First Division held that a similar use of Personal leave Days was used to manipulate a protective agreement. In Award No. 124 of PLB No. 1160 the Board held that a claimant's exercise of seniority nine times within a month was not good faith behavior. Finally, in Decision 5503of SBA No. 18, Neutral member Vernon held:

"This is not to say that layoffs, bidoffs and the like, per se, thwart application of the rule. However, in the present case, the record shows that claimant made a series of layoffs and markoffs which conveniently attempt to reap the rewards of the Guarantee Rule while evading the "availability" principle as contemplated by the rule... The majority cannot condone the sharp-shooting evident in this case"

Therefore, the Board finds that the claimant's actions were snapshooting the intent of the agreements.

In deciding whether it was proper for the Carrier to deny guarantee payments due to his sharp use of compensated leave privileges, the Board is faced with two completely opposite arguments. The Organization argued that specific contract language governed the application of guarantee payments. The Carrier on the other hand argued that you had to look beyond specific provisions of the agreement and look at the overall intent of the parties in negotiating Guaranteed Extra Boards and Guaranteed Supplemental Extra Boards.

The Board notes that the parties use the same agreement language to support its position. The Organization argued Side Letter 3, dated September 5,1996 is controlling ia this dispute. The Organization stated this provision clearly showed that the Carrier should have called a meeting and not offset the guarantee. The Carrier on the other hand states that Side Letter 3 coupled with Article V of the December 12, 2002 support its position mat it was the clear intent of the parties was to prevent sharpshooting.

The Organization also argued that the authors of the agreement were very specific that personal leave days and vacation days could not be used to offset the guarantee when they formulated Question and Answer Number 8 of the September, 1996 Crew Consist Agreement .The Organization concluded had there been any exception, one would have been noted. The Carrier argued that you must look at the overall intent of the agreement and the Organization's interpretation of Question and Answer 8 removes the overall intent of the parties to prevent sharpshooting.

This Board is persuaded by language found in Decision 3636 of Special Adjustment Board No. 18 wherein it was stated:

"The principle that the intention of the parties is the thing of importance is set forth in numerous National Railroad Adjustment, First Division awards. For instance, in Award 15013, the pertinent part reads:

"... It is a well established rule of construction of written instruments that an interpretation that will give effect to the clear intent of the parties is always preferred to one that will nullify all or any parts of their objectives."

There is likewise ample authority for the principle herein before enunciated to be found in American Jurisprudence relating to interpretation and construction of contracts. We find, for example in 12 Am. Jur., Contracts, Section 227, the following:

"Generally speaking, the cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention of the parties and to give effect to that intention if it can be done consistently with legal principles. Whatever may be the inaccuracy of expression or the inaptness of the words used in the instrument in a legal view, if the intention of the parties can be clearly discovered, the court will give effect to it and construe the words accordingly."

The Board agrees that fundamental contract interpretation supports the Carrier's conclusion that the overall intent of the agreement must prevail.

The Board finds that the overall intent of the agreements is to pay employees assigned to Guaranteed Extra Boards and Supplemental Extra Boards fixed amounts of pay subject to availability. The Board also agrees that the quid pro quo for the guarantee is the obligation of extra board and supplemental extra board employees to remain available for call. This principle is supported by Decision 5503 of Special Adjustment Board No. 18 which held: "The quid pro quo of trainmen availability for a guaranteed income is implicit in the rule."

The Board further finds that the parties did not intend the guarantee rules to be manipulated to provide a windfall to employees assigned to such boards. Therefore, the Board does not agree with the Organization that Question and Answer No. 8 outlined the clear intent of the parties. The Board concludes that the clear intent of the parties was to prevent sharpshooting in the use of personal leave days and single day vacation.

Therefore, the Board finds that it was proper for the Carrier to deny guarantee payments to the claimant based on the facts and circumstances present in this case. However, the Board notes that Side Letter 3, dated September 5,1996 provided that the parties will meet and address problems if the changes in the Personal leave Agreement provided a mechanism for employees to engage in sharp practices. The Board therefore agrees with the advice given in Decision No. 5503 of Special Adjustment Board No. 18 that the parties to this dispute sit down and negotiate guidelines to prevent further sharpshooting.

John R. Binau - Neutral Member

 M.B. Futhey, Jr - Organization Member

R.R. Guidry - Carrier Member