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PUBLIC LAW BOARD NO. 6305
AWARD NO. 26
NMB CASE NO. 26
UNION CASE NO. 26
COMPANY CASE NO. 1243523
PARTIES TO THE DISPUTE:
UNION PACIFIC RAILROAD COMPANY
(Western Region)
- andUNITED TRANSPORTATION UNION
STATEMENT OF CLAIM:
Claim a basic day's pay at the applicable freight rate for Conductor W. L. Haire
account he was not provided with a locker when going off duty at the away from
home terminal on July 30, 2000 in Long Beach, California.
OPINION OF BOARD: In this case, Conductor W. 1. Haire presents a claim that his rights under
Article 31, Section 3 (a), of the October 1, 1976 Trainmen's Agreement were violated when he
arrived at his off duty point at the away from home terminal, Long Beach, California, on July 30,
2000 and found there were no lockers available for him. [The record shows that the Parties have
chosen that particular claim as a "pilot case" for some 77 other similar claims held in abeyance
pending the arbitration of the present matter].
Article 31, Section 3(a) ofthe October I, 1976 Trainmen's Agreement provides, in pertinent
part:
In territory where cabooses are pooled the Companywillprovidetrainmen at through freight
terminals with locker rooms separated from the toilet room by solid partitions, sbower, wash
roomandsanitary facilities. Suchlockerroomswillbeequippedwithtable,chairs,and standard
steellockers, properly ventilated. The Company willprovide janitorial service. If question arises
about the number of lockers provided at any terminal in territory where cabooses are pooled,
Superintendent and Local Chairmen will confer toward agreement aboutthe number of additional
lockers needed, if any. (Emphasis added.)
It is noted that the foregoing language remained unchanged during negotiations by the Parties
ofcertain other modifications ofthe SP West CBA, in consideration of its selection as the surviving
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CBA for the merged Southwest Hub territory. Thus, it remained in effect after the Union Pacific
Railroad assumed the rights and obligations of the former Southern Pacific Lines Agreement,
including all addenda, side letter agreements, awards and interpretations, in the Los Angeles Hub
Merger Implementing Agreement, effective January 16, 2000.
The facts giving rise to the present dispute are not in material conflict on this record. Long
Beach is a through freightterminal at which crews go on duty at several different locations, pursuant
to the terms ofArticle VI, Section B, 2 c) of the Los Angeles Hub Merger Implementing Agreement,
which states that "the lodging facility will be the on and off duty point for through freight crews
when at the away from home terminal". It is not disputed that UP provides no lockers for away
from home crews at Long Beach, neither at the terminal buildings nor in the Holiday Inn lodging
facility. We conclude that, on the basis of clear Agreement language and the undisputed facts, the
Organization made out prima facie support for the present claim that Carrier was in violation of
Article 31, Section 3(a).
In denying the claim(s) on the property, Carrier asserted that Article 31(a) "deals with
cabooses and has no relevancy to the claim at hand nor to the reality ofrailroad operations in the 21"
Century", citing Article VI, Section B, 2 ©) of the LAX Hub Merger Implementing Agreement,
supra. Arguendo, Carrier cites NRAB First Division Award 24527 for the proposition that any and
all obligations it might have at Long Beach under Article 31(a) are more than fulfilled by providing
away from home crews at Long Beach with motel rooms in a commercial lodging facilities,
including in-room toilets, showers and sufficient in-room closet space to store clothing and
equipment.
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We are not persuaded by Carrier's preliminary argument that Article 31(a) is no longer a
viable contract provision. Nothing we can see in the language ofArticle VI, Section B, 2 (c) ofthe
LAX Hub Merger Implementing Agreement trumps, obviates or neutralizes the clear and
unambiguous language ofArticle 31(a). In that connection, we are also mindful ofthe cardinal rule
ofarbitral andjudicial construction and interpretation ofcontract language, viz.: an agreement should
be read to give effect to all of its provisions, to render them consistent with each other and to avoid
an interpretation by which one provision cancels or renders another provision ofthe same agreement
meaningless surplusage or of no effect. NRAB Award 1-24571 does appear to support Carrier's
alternative argument that Article 31 (a) requirements for "toilet rooms", "wash rooms" and
"showers" are reasonably fulfilled at Long Beach by in-room toilet and washroom conveniences in
Carrier-provided motel rooms at the on-off duty point lodging facility. However, that begs the
question concerning the central point of this claim, i.e., the failure to provide any locker facilities
for away from home employees at either the terminal itself or at the lodging facility. Nor are we
persuaded that in-room closet space is the functional equivalent of the expressly described lockers
specified in Article 31 (a).
At the hearing in this matter, the Board ascertained that Carrier does in fact provide lockers
in strict compliance with Article 31 (a) at other away from home terminals covered by the
Agreement, including commercial lodging facilities as well as in purpose-built Carrier-owned and/or
leased facilities. Logistical issues concerning several different on-duty points and reluctance ofthe
commercially-owned lodging facility to provide sufficient space are cited by Carrier as mitigating
factors for the lack of lockers at Long Beach. Difficulty and expense of contract compliance with
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Article 31 (a) at Long Beach do not equate with impossibility ofperformance, however, and cannot
be taken to excuse the proven Agreement violation proven on this record.
As for remedy, the Organization points to Public LawBoard 3985, Award 99, which held
that:
The instant claims are supported underthe mandatory requirements ofthe Caboose Pooling Agreement
dated April 15, 1959. The Agreement has not been cbanged or amended concerning the specific
requirements relativeto suitable lockers, sanitary toilet washroom facilities, etc. The payment of a
day's pay is proper for the violation ofthe rule not as a peoalty, but compensatory damages which Will
deter the Carrier from complete disregard to its obligation. In the instant case the Carrier has deprived
Claimants of their rights under the contract rule and thus a literal noncompliance with the express
terms of the contract warrants the payment under the minimum day rule. Therefore we must sustain
theclaim."
Unlike the Board in that case, however, we did not hold that Carrier "completely disregarded" its
Article 31Ca) obligations relative to "suitable lockers, sanitary toilet washroom facilities etc.".
Rather, we concluded that while in-room toilet and shower facilities met the requirements of the
Agreement, in-room closet space is not the functional equivalent ofthe locker requirement ofArticle
31(a). While that failure of compliance is not condoned or excused, it does not constitute the kind
of"literal noncompliance" or "complete disregard" ofthe Agreement which would warrant the basic
day penalty. On balance, we conclude that an appropriate remedy in this case is one hour additional
compensation for Claimant for each day when he was not provided with a locker when going off
duty at the away from home terminal in Long Beach, California
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AWARD
1)
Claim sustained.
2)
Carrier shall implement this Award within thirty (30) days ofits execution by
a majority ofthe Board.
Dana Edward Eischen, Chairman
ClS2~~_ _
Company Member
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