Educational memo 19-02
With the carrier having continual manpower issues, they may be forced to utilize crews in fashions not in compliance with the agreement. Several recent Arbitration awards and the language contained within those awards might come into play with regards to claims you might encounter.
Claims discussed in this educational memo are:
-RSIA/Hours of Service claims
-Revenue vs. non-revenue
The following Arbitration awards from April 2019 are of importance:
PLB 7265 AWARD NO. 24 (RSIA):
The two (2) questions submitted to the Board in Case 24 along with the answers provided by
Referee Twomey are summarized below:
1. Question No. 1 for Claim Categories 1 and 2:
Do Articles 41 Q&A 1 and 55, F, 3 of the 2007 SSA as amended require the Carrier
to pay road and yard Engineers lost earnings when CSX fails to hold their
assignment while they are observing FRA mandatory rest under the Federal Hours
of Service Law?
Answer: Yes – Provided the regular assigned road or yard engineer has not
adjusted their bid card per Article 81, Section 2, A, 1 between 0001 Saturday and
2200 Wednesday during the week proceeding Job Adjustment Day or volunteered
to work his rest day.
2. Question No 2 for Claim Categories 3 and 4:
Does Article 82, A, 13 of the 2007 SSA as amended allow the Carrier to reduce the
bi-weekly or daily guarantee for extra board Engineers who are observing FRA
mandatory rest under the Federal Hours of Service Law?
Answer: No – provided the extra board Engineer has not adjusted his or her bid
card per Article 81, Section 2, A, 1 between 0001 Saturday and 2200 Wednesday
during the week proceeding Job Adjustment Day or volunteered to work his rest
Simply put, if they have not adjusted their bid card on the preceding JAD and are forced into
one of the situations described (i.e. displaced by senior engineer/job abolished and had to move to different assignment) or (On XB, worked 6 starts and carrier reduced your guarantee because of being “unavailable) , the Carrier is liable for pay. Claim code “HS” explaining the details of the claim and claim all money lost, if you lost a trip claim the entire dollar amount for the trip lost.
PLB 7265 AWARD NO. 25 (SELF TRANSPORTATION):
The question submitted to the Board in Case 25 along with the answers provided by Referee
Twomey are summarized below:
Can the Carrier force Engineers to operate a company provided vehicle to selftransport
either themselves and/or additional employees in violation of SSA Articles
21-C, 33-C, 59, 84, 86 and the 1986 BLE National Agreement (458 Award) Article VIII,
Section 3 Incidental Work?
In fact, prior to answering the question, the award states, “The record is compelling that the Carrier must negotiate the right to require its Engineers to transport themselves and/or fellow crew members.”
If you are ordered to “self transport” using a Carrier provided vehicle enter in a claim under CA for 8 hrs using the following language:
“ On the date named, the claimant was ordered by (Carrier officials’ name) to Drive a CSX vehicle to and from the recrew location (state location) to the yard office (state location), or in some instances drive another crew to and from the yard office to the recrew point, then drive themselves to and from a recrew location.(be specific state time location driven to/from, if ordered via phone or radio state “play radio/phone tapes CH46/ Ext 518-767-xxxx”)
The work done is in violation of the of SSA Article 15, 59 as well as National BLET Agreements including Arb Award 458 SL #7. There is nothing within the language of the agreement(s) that state that engineers can preform work outside their scope of "engineer" nor is driving a carrier owned vehicle defined as "incidental work" as contained in SL #7. Also see PLB 7265 Award 25 (Twomey)
Claim is for 8 hrs pay for preforming work not associated with the craft of "engineer" and violation of PLB7265 A25 “
PLB 7265 AWARD NO. 26 (REVENUE VS NON-REVENUE):
The question submitted to the Board in Case 26 along with the answers provided by Referee
Twomey are summarized below:
Is a basic day penalty payment due to the unassigned freight pool, regularly
assigned road freight or interdivisional service Engineer who is instructed to
perform non-revenue service in violation of Article 50, G, 5, Note?
This Award concerns employees in unassigned freight pool, regularly assigned road freight or
interdivisional service being called from the home or AFHT in straightaway service who, after
departing, are instructed to stop and perform MOW work such as unloading ties, ballast, rail, etc.
To be clear, you may operate MOW trains in the above listed service without penalty so long as
there is no work being performed between terminals. For example you’re called for a weed sprayer train in the AY-DW F1 pool, if you do no weed spraying enroute no penalty is due, HOWEVER if you do in fact weedspray enroute the penalty is an 8 hr day, and the 1st out engineer on the appropriate extra list (in this case the AY-DW extra lis)t is due a claim as well.
What is most significant, however, is the language Dr. Twomey used to ascribe both the penalty
and the recipient.
“While the Carrier has expressed a commitment to reduce the number of pool
crews operating in non-revenue service, it is a clear and unmistakable violation of
the Agreement when it does so. And, a penalty payment of a basic day to a
Claimant who is improperly used in violation of the Agreement on work he should
not have been required to perform is a proper claim.
This ruling affirms that, absent express language in the controlling CBA assigning a specific penalty to a specific violation, a penalty of a basic day shall be proper. Dr. Twomey also rejected the assertion that the only person due a penalty is the employee who was denied the work opportunity and not the employee who was actually aggrieved. Note that this award does not preclude the extra board employee from entering a companion claim for a run-around (RA).
Using claim code 38 the following claims text could be used:
“While working train W049-xx between Dewitt and Selkirk was required to preform work train duties by (weed spraying/dumping ties/dumping ballast) between (locations preformed Work train duties) between the hours of (xxxxhrs and xxxxhrs) under the orders of MW foreman XXXXX. The work done was in violation of Article 50, G, 5, Note and PLB 7265 Award 26. Pay 8 hrs for violation of agreement”
In closing, this information should be discussed at your respective meetings with your members
to make them aware of these adjudicated decisions. These awards were only made possible
thanks to every member who took the time to enter a claim. Things would also not have turned
out nearly as well without the involvement of every Local Chairman who encouraged their
members to keep up with the claims. We recognize that the process is long due to industry
constraints, however the great work they did in handling and perfecting the claims was invaluable to our success.