NATIONAL RAILROAD ADJUSTMENT BOARD
FIRST DIVISION
Award No. 26435
Docket No. 46322
07-1-05-1-201
The First Division consisted of the regular members and in addition Referee
James E. Conway when award was rendered.
(United Transportation Union
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of 67 trainmen (named in Attachment A) for runaround
compensation at Tucson, Arizona on March 26, 2004, when they
were not called for a conductor vacancy on Run No. MUOl, Train
ID-ETUTO 25, on duty at 5:30 a.m." I
)
FINDINGS:
The First Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act,
as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice ofhearing thereon.
This dispute involves 67 claims submitted on March 26, 2004 to Carrier's
CMS Timekeeping Bureau on behalf of numerous Tucson-EI ·Paso and TucsonYuma conductors. All assert entitlement to either a basic day or a half a basic day's
pay as a result of Carrier's wrongful failure to call the proper conductor for service
)
The record reflects that in response to the Organization's snbmission nf 132 Nntices nf Intent invnlving
mnltiple allegatinns nf rnnarnund the Parties cnnferred and agreed tn identify this matter as "lead claim" for
purposes of resolving the cnnunon issne embedded in all cases cnvered by such Nntices nf lutent.
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during a period when he was serving on an extra board, rested, available for service
but bypassed in favor of another conductor. ( Hereafter, "runaround" claims.)
Pursuant to record evidence, the basic question at issue in this consolidated Claim is
identical to or representative of the issues raised by numerous other pending claims
arising from similar fact patterns.
The issue before the Board is whether trainmen beyond the jnnil}r rested
available conductor in line to be called at the time of the runaround incident are
entitled to the runaround compensation set forth in Article 23 of the Agreement.
The facts underlying this Claim are undisputed. Thereis, however, serious
disagreement over how Article- n shmtld he applied to them.
The record reveals that on March 26, 2004, pool freight Conductor P. M.
Bearden was the first-out junior available pool freight conductor standing next in
line for call when Carrier's Crew Dispatcher attempted to fill a 5:30 a~m. conductor
assignment in the Tucson freight pool. In that process, the Dispatcher filled the
vacancy with a Tucson yard extra board switchman, Mr. Graves, instead of Mr.
Bearden. Accordingly, since Bearden was admittedly runaround, he was the proper
employee to benefit from the penalty pay terms of Article 23 - HANDLING OF
TRAINMEN. ("Runaround Rule.") Article 23 reads in part as follows:
"Section A. Trainmen in pool freight and unassigned service, also
trainmen on the respective extra boards including those trainmen
used in extra service, will be run first-in first-out; if not called in
turn through no fault of their own, they will be allowed 50 miles and
if not called for service within the limits of four hours they will be
allowed 100 miles. Runarounds will be paid at the rate applicable to
class of service for which they should have been called."
The multiple claims before the Board were submitted that same day on
behalf of the 67 conductors identified by name in the Organization's submission. 2
All claimed pay as a result of a chain reaction of multiple runarounds flOWing from
the initial Bearden bypass. All were promptly declined. Following handling on the
property they then came before this Board for resolution.
2
The Parties' submissions at various places reflect 67, 68 and 69 claims.
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Summarized economically, the principal argument among several put forth
by the Organization on behalf of these Claimants is this: When the Southwest
Territory Merger Implementing Agreement was concluded in -1999, pursuant to
Article VI Carrier selected the "SP West modified UTU Agreements" with their
attendant prior awards as prevailing agreements. Under those Agreements, if
Carrier jamped Ewer the trainman next in line tl} be called fl}r an assignment and
filled the vacancy improperly, all conductors below the person first bypassed were
viewed as" suffering losses by dropping down a tUrn when someone is used ahead of
them. Since they are adversely affected, they had derivative rights to runaround
pay in the same way as the eligible conductor first in line. Many years of
uniform, consistent past practice in applying Article 23 on the former Southern
Pacific may be seen in numerous _Board _decisisms and accepted settlements
providing for multi-employee run around payments.
)
Carrier's position, similarly abbreviated, is that the Organization gives
insufficient account to the terms
of the Agreement.
Carrier does not appear to
dispute the UTU's contentions with respect to the affects of the merger agreement,
but argues that its reliance on allegedly longstanding practice on the former SP,
supposedly acquiesced in by Carrier, is misplaced. No such practice of paying the
runaround penalty to all employees on the involved list has been established. And
not only has the Organization not demonstrated such a practice, even if it had, that
history could -not overcome the plain language of the rule which contains no such
pay obligations. Swimming not far below the surface of this Claim, Carrier
contends, is the Organization's dissatisfaction with crew calling changes
implemented several years ago. In response to those changes, its Local Chairman
flooded the system with claims of this type on a daily basis in an effort to pressnre
Carrier into modifying its practices.
Our starting point is the familiar one: In the absence of ambigUity in
Agreement language, the words chosen by the parties to convey their intent, given
their usual meanings, have the last word. If the language agreed upon is clear, no
resort to secondary sources such as past practices in aid of interpretation is either
permissible or necessary.
)
The language of Article 23 is reasonably clear. As the Carrier correctly
points out, the terms "first-in, first out" are common vernacular in the rail industry.
That said, in view of the use of the plural throughout the article, arguably reflecting
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agreement to pay runaround compensation more broadly than Carrier admits, the
Board first considers the Organization's history-based'arguments•.
The Organization sponsors a substantial volume of documentary materials
reflecting large numbers of settlements to multiple claimants on the Southern
Pacific under seemingly identical circumstances. In respunse, Carrier cuntends that
its cunsultation with furmer timekeepers on that railmad establishes that mUltiple
claimants were never paid "under the claim scenarios in question" and it supplies
corroborating affidavit evidence in that regard.
How these competing proofs can be reconciled is a gnarly question. One
reasanable explanatian is that the praetiee relied upon eeased years ago, which
would go far in harmonizingthe evidence. Plainly, the record evidence establishes
that for some time there was a practice on the SP of honoring multiple
runaround claims in the manner urged by the Organization. It is unnecessary to
to reach the question of whether the circumstances out of which those payments
arose were the. same as those involved in Mr. Beardon's runaround because
regardless of the true dimensions of the practice, insofar as the dQcumentation of
record goes, it held sway in the decades. of the 1950's and 1960's. The Board
discerns no evidence of any practice of paying multiple claimants in the most recent
40 years, and certainly none so well-established, open and continuous it could be
said to attain binding effect as an implied term of the Agreement.
The Organization's implied mutual agreement argument thus gets little
traction. It further contends, however, that prior arbitral precedent requires a
sustaining award. The record before the Board in that regard includes a large
number of prior .First Division Awards involving both these and other parties
addressing this and related issues dating back 55 years.3
Despite the limitations inherent in much of the precedent offered, some of the
awards cited appear tn squarely nn pnint. Of those, some favor the brnad reach of
the runaround pay provisions urged by the Organization and others explicitly reject
that notion. Fourteen Special Adjustment Board No. 18 (Mabry) decisions offered
3 It is to some extent a dings and dents bin. A large number oftbe awards relied upon, although appearing to
implicate runarounds, involve a variety of rules and factual conditions, some similar to and some
distinguishable from Article 23. Of tbose tbat clearly address runarounds, some do not recite the specific
terms of the governing rule at issue. Others reflect so. little factual background as to be of no material
assistance to the Board.
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by the Organization, for example, are uniformly favorable to the Claimants'
position. Most appear to involve calling order claims under Article 23, although
none indicates the exact terms ofthe rule under review at the time. 4
Significantly, while the arbitral precedent cited by the Organization without
exception dates to between 1953 and 1969, Carrier offers a persuasive assemblage of
contemporary First Division awards dating from 1970 and later, some involving
these parties. Regardless of the carriers and organizations involved, however, all
without exception reject chain reaction claims pfthe type under consideration.
The Board thus finds the vein of contemporary cases submitted by Carrier to
be the better reasoned anthorityand to represent what is more likely to he the
majority view on the question. The record does not inform us why the arbitral
authority on the SP as it stood in the 50's and 60's was overturned in more recent
years, but the evidence clearly establishes that the same sAB No. 18 that earlier
sustained claims of this type refused to do s6 after 1969. The broader authority
sponsored by Carrier is in accord with those later decisions of SAB No. 18. Thus, for
instance, in First Division Award No. 25066 (Soo Line Railroad Company & UTU)
(peterson) (1999), the Board construed a rule identical in all material respects to
Article 23. In denying claims on behalf of employees who were not first out, the
Board held as follows: .
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"Argument such as that offered by the Organization in advancement
of its claim have many times been considered by this Division and
other boards of adjustment. Although awards sustaining claims for
runaround in which the claimants were not first-out· have been
rendered, the overwhelming majority of awards have rejected a socalled 'chain reaction' argument for rules that read essentially the
same as those involved in this case. These latter referenced awards
For reasons not explained on this record, SAB No. IS ~de a right-angle turn after 1969 under Referee
Hanlon and began denying these claims. See, e.g. Special Adjustment Board No. 18. Decision No. 4551 Southern Pacific Transportation Company & UTU (1970) (Hanlon) (first conductor entitled to pay for
bypass; claim of next condnctor in line denied: "[E]mploye secondarily affected in the chain reaction...is not
entitled to a penalty payment." See, also SAB No. 18. Decision No. 4776 (primary claimant entitled to pay;
"[t)he chain reaction affect if any, on the other claimants has been ruled non-eompensable in numerous
decisions of this Board." (Hanlon) (1973) (citations omitted); Public Law Board No. 3923 - Union Pacific
Railroad Company and BLE (Eischen) (1984) ("The question of 'multiple runarounds' [under Brakemen's
Agreement) was decided in 1972 by PLB 721, Award No.3 (Haulon), citing holding: "No rule or practice has
been cited which would justify a claim for mnltiple runarounds.••".
.
4
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have generally held that a meaning such as that contended for by the
Organization in this case would lead to an absurd interpretation of
the language of such rules. In this respect, we. especially note the
Finding of Award No. 143 of SBA No. 107, UTU-NWP with the
Honorable Jacob Seidenberg...wherein it was stated:
.
'It is apparent these sort of claims could be never ending. If a
dispatcher made one innocent error, it could result in a
continuous sequence of claims by every trainman who· could
contend that if the error had not been made, he would have been
used for service other than what he performed. It could involve a
tremendoM talik of ree_trueting a given sitnation, especially if
. the prior mistake was not discovered immediately.'''
In sum, notwithstanding the impressively thorough manner in which the
Organization has represented his members, we find neither any reasonably current
past practice nor any arbitral precedent of sufficient persuasive force to defeat the
plain meaning of Article 23 restricting runaround pay to the first person out. The
words, "in turn" as used in that article must be read to have. reference to how
employees assigned to a pool or board stand relative to each other. There is no
showing here that the remaining 67 or 68 Claimants were ever not called "in
turn," i.e., that someone else was called for a train when they stood first out, even
though they may have been called for subsequent assignments later than they would
have been absent the bypass of the first-out person. Nor is there evidence
establishing they were not paid when called. If the rule. had contemplated multiple
runaround payments, the incorporation of language expressly providing for that
result would have been easily accomplished.
.
The Claim is denied. The rightful Claimant under Article 23, and the only
rightful Claimant, is the person who stood for the assignment for which another
employee was called.
AWARD
Claim denied.
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Award No. 26435
Docket No. 46322
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ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of First Division
Dated at Chicago, illinois, this 22nd day of February 2007.
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