Brotherhood of Locomotive Engineers
Division 758

Richard E. Etienne
Vancouver, WA
rick@etnsplace.com

 

Mr. Randy L. Luther
Director, Labor Relations
BNSF Railway
2600 Lou Menk Drive
Ft. Worth TX 76131

January 13, 2000

Mr. Luther,

Recently, a claim for holiday pay for a locomotive engineer was declined, under instructions from labor relations. This employee worked a switch engine at Vancouver WA. on 12-24-99, Christmas Eve. He was paid straight time for the holiday shift, while the rest of the crew was paid the double time and one-half for the holiday. Needless to say, the employee was very unhappy.

Upon investigation of the declination, a board award was sent, PLB 2015, award 7. The date of this board award is January 29, 1979. The decision is based on the national agreements of 1964, and 1969. This committee can only wonder why it has taken thirty years from the time of the national agreement, and 20 years from the time of the board award for the carrier to implement this interpretation. There is such a thing as historical past practices, and those practices have been upheld in recent board awards. I quote:

 

Award No. 5779 Referee Ernest M. Tipton, states In part as follows:

"Where the language of an agreement is ambiguous and Is therefore open to two constructions, it will be given the Construction adopted by the parties to the agreement, and such construction can-not be changed except by mutual consent of both parties."

Award No. 9252 Referee Curtis W. Roll, states In pert as follows:

"But if a rule is ambiguous and of doubtful meaning or of doubtful application, then a continuous or prolonged practice under the rule would be considered as a practical Interpretation of that rule by the parties themselves, and the rule would be Interpreted In harmony with interpretation and practice."

Award No. 9290 Referee Richard V. Mitchell, states In part as follows:

"It must be governed by the interpretation put upon this rule by the parties as evidenced by past practice at this point."

Award No, 4320 Referee Frank M. Swacker, states in part as follows:

"Another important rule is that conduct of the parties under the agreement over a period of time is evidentiary of their intent."

Award No. 7484 Referee Thomas J. Mabry, states in part as follows:

"Long acquiescence in an interpretation of an ambiguous rule, or agreement, must likewise be given some weight."

In all these awards, the notion of historical past practices has been upheld. It seems strange that after all these years, the carrier would do an about face, and form a new interpretation. There has been no change in either agreement.

Mr. Luther, another issue to contemplate is this: What is the nature of our business? The answer is to move the customer's freight, and do so in a timely fashion. I also understand the need for cost cutting, but there is a need to weigh the consequences of certain cost cutting. Most operating craft employees are working for the paycheck. I doubt any are working for the sheer enjoyment of it. Doesn't it stand to reason that if a policy is enforced that would cause an individual to be compensated significantly less than the other members of a crew, that that individual would have no motivation to work on that day? In the past, an employee who worked a road job on the holiday made what the rest of the crew made; no holiday pay. This was fine, as the entire crew made the same amount. An employee who worked a holiday yard job made the holiday pay; the same as the rest of the crew. Now, it is expected for an individual to work a yard job and make only straight time wages, while the rest of the crew makes holiday pay? Where is the equity in that?

Mr. Luther if it is the intention of labor relations to bring the railroad to a complete standstill on the eleven legal holidays, this committee feels that goal will be highly successful. I find it hard to believe that any employee working the extra board would stay marked up in order to make basic wages. I find it even more unbelievable that your office would think differently. I know that if I was working the extra board, and had to make the decision between spending the holiday with my family, and working for less than the rest of the crew, I believe you know what my decision would be. What would yours? However, if the goal of the BNSF is to provide the impetus for employees to spend holiday time with their families, you will succeed beyond your wildest desires. This committee suggests that another look be taken at this decision. Perhaps the long-term ramifications should be weighed.

 

Respectfully,

Richard E. Etienne

Local Chairman
Div. 758


CC: MW Geiger Jr.
JD Fitzgerald
MD Dealy