The following letter was sent by General Chairman Jim Dayton on Febuary 2, 2015 to Labor Relations regarding the ongoing dispute with the Carrier’s non payment of Short Crew Allowance.
Download the letter 21448 – JLD-BEW Short Crew Allwnce dispt 020215
Dear Ms. Wilderman:
This has reference to our several discussions in conference regarding the Carrier’s recent action of discontinuing payment to eligible engineers of Short Crew Allowance/Special Pay Differential payments provided for in Article V of the November 7, 1991 Agreed Upon Implementation of Public Law 102-29. This action was initiated upon the implementation of Agreements entitled “Streamlining UP Eastern District Employe’s Productivity Fund Payment Disbursements” and “Streamlining Northwestern District (Oregon Division) Employes’ Productivity Fund Payment Disbursements” between the UPRR and the SMART-TD GCA representing train service employees on the Portland Hub Zones 1, 2 and 3 and the Salt Lake Hub which were effective November 1, 2014. This letter will also confirm our verbal rejection of the Carrier action. Finally, it will acknowledge receipt from you via e-mail of three arbitration case awards that the Carrier is referencing in support of its position.
A review of the three awards provided reveals that none of them match the conditions/facts present here. Each of those awards addresses instances where the Productivity Fund for the eligible trainmen was terminated through a buyout, in exchange for some other benefit (for instance extended New York Dock protection benefits) or some other means. In contrast to the conditions present in the cases previously arbitrated the titles of these Agreements, “Streamlining UP Eastern District Employes’ Productivity Fund Payment Disbursement”, and the agreement for the Oregon Division trainmen clearly set out that the productivity fund payments for eligible train service employees will continue but through a simplified administrative process. The title of the agreements set out that the productivity fund continues but in a streamlined manner. Additionally, both agreements contain the following language in the preamble (the citation is from the Oregon Division Agreement) “Union Pacific Railroad Company (“UP”) and the International Association of Sheet Metal, Airline, Rail and Transportation Workers – Transportation Division (“SMART-TD”) desire to streamline the process for disbursing annual payments from Employe’s Productivity Funds to eligible UP Northwestern District (Oregon Division) train/yard service employees. Accordingly, the parties signatory hereto agree to the following:” (emphasis added.) This language affirms that the productivity funds continue but will be handled in a more streamlined, individualized manner.
The Agreements continue by providing the following: (From Article II (A) of the Oregon Division Agreement – both agreements have identical language pertaining to their respective territories): “Crew consist protected employees, as defined in Article III, Section 2 of the 1980 Crew Consist Agreement, eligible to participate in (i.e., receive disbursements from) a UP Northwestern District (Oregon Division) Employe’s Productivity Fund (i.e., the Portland Hub Zone 1 (Fund #601 or Portland Hub Zone 2(Fund #602) Fund) shall,in lieu of the annual productivity fund disbursement from one of these funds, be paid an annual payment by UP equal to one-third (1/3) of his/her earnings earned on train/yard service positions governed by applicable UP/SMART-TD collective bargaining agreements during the 12-month period beginning on November 1 of the preceding year and ending on October 31 of the current year.” (emphasis added.)
The agreements continue by comprehensively and exhaustively outlining how eligible employees will receive the productivity fund payment based upon the same service performed prior to the effective date of the agreement. The payment due is 1/3 of the qualifying earnings of the eligible employee. There has been no reduction in cost to the Carrier. The methodology of the streamlining is that the Carrier is establishing a Productivity Fund for each eligible train service employee which is equal to 1/3 of the earnings from qualifying service during the Productivity Fund Year. Each time the eligible train service employee performs qualifying service the Carrier contributes an amount equal to 1/3 of the resulting earnings to that employee’s Productivity Fund. The payments are then disbursed to the eligible employee “no later than December 16th of the current year.”
Under this arrangement eligible train service employees will still receive the same amount of productivity pay at the end of the year, leaving the underlying issue – of pay inequity resulting from crew consist payments to pre-85 train service employees – addressed by Article V of the November 7, 1991 Agreed Upon Implementation of Public Law 102-29 still in place. All the conditions of Article V of the November 7, 1991 Agreed Upon Implementation of Public Law 102-29 continue to be met (i.e. the train service employee is entitled to receive a productivity fund payment and the carrier is required to make a productivity fund payment for that trip or tour of duty) and the Carrier’s obligation to maintain Special Pay Differential payments to eligible engineers also continues.
What the Carrier has done is engage in a sleight of hand by appearing to change the name while maintaining all benefits to those qualifying train service employees of receiving the full entitlement of the annual individual productivity fund payment provided pursuant to the agreements. These benefits will continue until (from the Oregon Division Agreement) “there are no crew consist protected employees in service with UP on the territories comprising the UP Northwestern District (Oregon Division)”.
The Organization notes that Note 2 of Article II, Paragraph 2(d) provides:
“It is not the intent of this Agreement to extend eligibility for participation in a productivity fund distribution to a SMART-TD officer who did not, or was not eligible to, participate in or receive a productivity fund distribution prior to the date this Agreement is placed into effect.” (emphasis added.)
Additionally the Agreements provide in Note 3 of Paragraph 4 of Article II as follows:
“A verifiable SMART-TD payroll recap(s) of wages/salary paid to part-time Local Chairmen, Secretary-Treasurers or Vice General Chairmen for the applicable months comprising the productivity fund fiscal year will satisfy the requirement for documenting wages/salary paid to said part-time officers.” (emphasis added.)
Paragraph 6 of Article II of the agreements provides:
“An employee who qualifies as a crew consist protected employee in accordance with the 1980 Crew Consist Agreement who retires, resigns, or whose employment relationship with UP is severed shall be paid this annual productivity payment based upon his or her earnings during the period beginning on the preceding November 1 and ending on the day his or her employment relationship with UP is severed within sixty days of said employees’ termination of his or her UP employment relationship.” (emphasis added.)
“NOTE: The provisions of this Paragraph 6 are specifically intended to only address the handling of the annual productivity payment for employees whose employment relationship with UP is terminated (severed). Accordingly, employees on leaves of absence, disability leave, etc. are not covered by this Paragraph 6.” (emphasis added.)
It is obvious that the Union Pacific Railroad Company has agreed to continue to pay the eligible train service employees an individual Productivity Fund payment for so long as they maintain their employment relationship with the Carrier. The Productivity Funds are maintained on an individual basis and the pay inequity they generate continues.
Accordingly, we respectfully request that the Carrier pay the affected engineers the Short Crew Allowance/Special Pay Differential payments due them since payments were terminated, and resume making those payments when they perform service with a train service employee who qualifies for the annual individual productivity fund payments.
Please advise as to your handling.
J.L. Dayton General Chairman – BLET WRGCA