Award No. 2
Case No. 2
9-4657-446-R
TL-8786
PUBLIC LAW BOARD NO. 3736
PARTIES:
United Transportation Union (C&T)
vs.
Union Pacific Railroad Company
STATEMENT OF CLAIM:
Claim of Cheyenne Fifth/Sixth District Conductor J. R. Ford and R. J. Frymi for a basic day each at the appropriate rate of pay account of being required by the Carrier to pass a written rules examination on February 22, 1983 and February 17, 1983, respectively.
DISCUSSION:
These claims involve the question of whether or not employees should be compensated for time spent taking mandatory proficiency examinations. The claims grew out of a rules examination policy implemented June 1, 1980 in response to a finding of the National Transportation Safety Board “that Union Pacific employees are apparently not adequately instructed concerning Union Pacific rules, nor are they properly examined on the rules.” Under this policy employees are required to be re-examined every two years. The passing score was first set at 80%, and later changed to 85%.
The Claimants here were re-examined on their layover day, and both received the required passing grade of 85% or better. It is their contention that they are entitled to compensation for the time they spent taking the examination.
The respective positions of the parties are:
ORGANIZATIONS POSITION:
The organization asserts that Rules 78 and 17, respectively, of the Road and Yard Schedule allow for the claimed compensation.
Rule 78 of the Road Schedule reads (in part):
(a) Conductors and brakemen attending court or other business on behalf of the company (other than attending investigations) will be paid as follows, together with the necessary expenses.
(b) Conductors and brakemen in pool freight or assigned service will receive what they would have earned had they remained on assignment, and if used on a layover day, will receive a minimum day’s pay.
Rule 17 of the Yard Schedule reads:
“Yardmen attending court, or other business on behalf of the railroad will be allowed full time and necessary expenses”
The Organization further states that when these provisions are applied the method of payment is determined by Rule 26 of the Road Schedule and Rule 2 of the Yard Schedule, both entitled Basic Day.
The Organization stresses that the claim for a basic day’s pay does not include any time spent in preparation for tho exam. They emphasize that preparation time combined with the time spent in taking the exam would be such greater than the normal basic day. In addition, the organization points out that the re-examinations are mandatory and not voluntary.
The Organization cites Federal Register Vol. 42, No. 104, page 27596 as supportive of their position. The opinion states that case law has determined that training sessions are “time on duty”. The findings of Public Law Board No. 1766, Award No. 19, which allows for payment under the Basic Day rule for those required to attend training sessions, are also cited in support of the Organization’s position.
Finally, Public Law Board No. 2126, Award No. 5, a case involving both Union Pacific Railroad Company and United Transportation Union affirms the findings of Public Law Board No. 1766, Award No. 19 and states “An employer may not, at his whim, appropriate an employee’s hours when he is not scheduled to work.”
THE CARRIER’S POSITION:
According to the Carrier the purpose of the re-examination policy is to improve safety, an improvement which would benefit both employer and employee alike. The Carrier refers to the ruling from Public Law Board No. 2975 in which a claim similar to the ones involved in this case was denied. The basis for the Board’s decision was the mutuality of benefits derived from re-examinations. The Carrier emphasizes the fact that the decision was on this property.
In asserting that attendance of rules examination is not compensable, the Carrier also cites decisions involving other properties. First Division Award No. 12203 and First Division Award 15126, denied claims for compensation for attending training classes. First Division Award Nos. 12204, 12205 and 10809 and Award No. 8 of Public Law Board No. 198 denied claims for payment for attendance at rules examinations. The Carrier asserts that these decisions constitute the majority view because they are awards from more than one property, including the Carrier. The Carrier further argues that the awards cited by the organization should only be looked to as a minority position.
Finally, the Carrier argues that Rules 26 and 27 do not support the Organization’s claim because they are general rules that do not specifically refer to a provision for compensation for rules examination attendance.
FINDINGS:
Although Rules 26 and 27 do not specifically refer to compensation for rules examination attendance, they do provide for the calculation of payment for a Basic Day. Rules 78 and 17 of the Road and Yard Schedule provide that employees engaged in “business on behalf of the railroad” will be allowed a minimum day’s pay. The Carrier does not mention Rule 78 and 17 in its argument against the invocation of Rules 26 and 27. However, if it is accepted that attendance at a rules examination is “business on behalf of the railroad” as stipulated In Rules 78 and 17, then the application of Rules 26 and 27 does not appear to be unfounded.
In asserting that its position is in the majority, the Carrier emphasizes the fact that the awards it cites involve more than one property, whereas the awards noted by the Organization involve only one property, and not the property involved in the dispute presently before this Board. However, the Carrier essentially dismisses the Organization’s citation of Public Law Board No. 2126, Award No. 5 which involved this railroad and this union, on the grounds that in that particular case the interpretation of a specific rule was involved.
This Board is persuaded by the logic reflected in the Awards of Public Law Board No. 1766, Award No. 19 and Public Law Board 2126, Award No. 5. In reaching this conclusion we have examined at length Award No. 16 of Public Law Board No. 2975. We share that Board’s reasoning that rules re-examinations should be of mutual interest and mutual concern to employee and employer alike. 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 are 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 compensation 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.
AWARD:
Claim sustained.
John N. Gentry
Chairman and Neutral Member
R. D. Meredith, Carrier Member
J. L. Thornton, Employee Member
Washington, D.C.
May 31, 1985
