Posts
From:>From: gilgore1@gmail.com [mailto:gilgore1@gmail.com] Sent: Friday, May 12, 2006 5:00 AMTo: All BLET UP Southern Region GCA
Subject: Guarantee Shortage
Brothers,
Attached you will find two awards dealing with employees allegedly engaging in sharp practice of using compensated leave strategically to enhance entitlement to guarantee payments. In my inquiry to the other BLET Up General Chairmen, Brother Hannah provided some earlier awards from the West addressing this same issue. (SBA 18 Awards 5503 and 3636 dated in 1983 and 1962 respectively). Neither the UTU or BLET General Chairmen are in agreement with Union Pacific’s position on these awards. I have been informed that some of our officers are using these decisions in the form of recruiting tools to gain trainmen members. I am formally requesting that practice to cease immediately. These issues have been looming on the horizon for sometime with the previous two awards attached dating back to 1962 and 1983. We are in the boat together on this and fighting and badmouthing each other will only further the Carrier’s agenda. The January 27, 2006 letter from President’s Hahs and Thompson announced a cooperative effort on the National level to deal with the carriers in this round of bargaining. This type of effort has been going on for quite some time at the General Committee level between our office, and Brothers Johnson and Bumpurs offices. We (Johnson, Bumpurs and I) have been united in our efforts to secure a long overdue ebb and flow (home rule) agreement only to have the Carrier balk and cancel our last meeting scheduled for our office in New Orleans this week. Make no mistake who our real enemy is…. UPRR. Brother Johnson is currently pursuing an agenda to have these awards negated in another venue that you will be apprised about at a later date. We are supporting that effort and these awards hit the property via the below response received from Randy Guidry to me on a guarantee shortage case we were dealing with. This documentation was distributed for informational purposes only and was not intended to be used against anyone in a negative way. If that is going on, please cease and desist that activity immediately and let’s focus on the real enemy of rail labor.
With that said, below is a work history from one of our members who has been shorted guarantee for the first half of April.
Another case has been brought to our attention as well. We are working to handle both of these cases and will keep you apprised of further developments. I have communicated with the other 5 BLET GCAs on this issue and received the attached response from two of them regarding similar problems on their property. It is imperative that we notify the membership that we believe UP’s position here to be erroneous and we will come out with instructions on how they are to deal with this problem as soon as we have completed our investigation into remedies available to address this issue. For the time being, do not submit any claims into our system on this issue until further notice. I would also ask that you review Guidry’s response below to keep yourself fully apprised of this issue.
I will put out further information next week after consultation with the National Division.
Gil
-----Original Message-----
From: Gil Gore [mailto:thegores1@cox.net]
Sent: Monday, May 08, 2006 9:08 AM
To: 'Mark Rogers'
Subject: FW: MT Rogers Guarantee Shortage
-----Original Message-----
From: RPGUIDRY@up.com [mailto:RPGUIDRY@up.com]
Sent: Tuesday, May 02, 2006 2:35 PM
To: Gil Gore
Cc: ROROSCO@up.com; FRANKATAMISIEA@UP.COM; SFBOONE@up.com; VLWARREN@UP.COM
Subject: Re: MT Rogers Guarantee Shortage
This refers to our discussion this date concerning Mr. M. T Rogers
and my commitment to review facts and circumstances.
Attached below are Awards 1 and 2 from Special Board of Adjustment created by Agreement dated August 10, 2005. These two recent decisons underscored several employment relationship fundamentals. First and foremost, the stable income provided an employee assigned to any Guaranteed Board (or circumstance) is only one-half of the equation. The other half of the equation - the quid pro quo for the guarantee - is the employee’s contractual obligation to provide reliable, full time service and remain available for call. All guarantees, specifically and implicitly, are designed to assure employees will perform service as intended and contemplate that employees will protect their assignment on a full time basis. Moreover, all Agreements that are signed by the parties hold to this expectation. Neutral Binau affirmed that perspective in relevant part:
“… 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. The principle is supported by Decision 5503 of Special Board No. 18 which held: ‘The quid pro quo of trainmen availability for a guaranteed income is implicit in the rule’.”
Awards 1 and 2, as well as the several other on property precedents, have likewise held that Agreements providing for guaranteed income are not intended to be manipulated to provide a monetary windfall and it is “proper for the Carrier to deny guarantee payments” when an employee attempts to do so. Moreover, the purpose of single day vacation and personal leave days, “ 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.” Single day vacations, personal leave days and/or non-compensated layoffs are not to be used or chained together to avoid work obligations.
Such conduct violates the basic underpinnings of the employer-employee relationship and inauspiciously affects co-workers. employees, including those assigned to guaranteed boards, are reviewed when they fail to demonstrate consistent patterns of work following and/or between reasonable absences (compensated or non-compensated).
In Mr. Rogers case, his absences were highlighted by chaining single day vacation days to avoid working eight days from March 30 through April 6, 2006, chaining compensated days and non-compensated days to avoid working eight days April 12 through April 19, 2006 and again April 28 through April 30, 2006.
With respect to Mr. Rogers' laying off for union business on
Saturday, April 29 and Sunday April 30, Union Pacific and several respected labor arbitrators apply the twin concepts of reasonableness and undue burden as limitations upon requests for leaves of absence for Union activities. What these two concepts mean, when construed together with regularity of attendance, is that if the union activity in question reasonably can be done on off-duty time without encroaching on work hours, it should be done then. In such case the need of the Company for services exceeds the need to be absent from work, which is what undue burden means.
Given the amount of guarantee in question and time off during the month, there was a considerable time available to have scheduled and completed union activities without encroaching on work hours. Replacing an absent extra board employee ordinarily places an undue burden and added expense. A concept of reasonableness requires accommodation by both sides. Any perceived entitlement to extra board guarantee for service under the auspices of union activities and chaining together layoffs is simply not reasonable by any measure nor is it supported by the agreement.
Case 1, Award 1 Case 2, Award 2
(See attached file: Priv Arb 040 A001.pdf) (See attached file:
Priv Arb 040 A002.pdf)
"Gil Gore"
