August 15, 2005
 
 
J. Kevin Klein, General Chairman
United Transportation Union
UP-Western Lines
501 Mission Street, Suite A
Santa Cruz, CA  95060

Dear Mr. Klein:

This refers to vacancy procedures for filling pool freight turns.

This is a subject we have discussed repeatedly over the last few years.  It was my hope that on a point by point basis, all of the pool home terminals would elect to adopt the vacancy procedure consistent with the labor contract in place of the various ad hoc and inconsistent procedures which had either evolved or been implemented.  Specifically, the vacancy procedure that conforms with the labor contract and was the basis for my earlier proposal was:

1. Pool.
2. Extra board (primary only).
3. The senior demoted conductor with full rest (if any).
4. The senior rested regularly assigned conductor with home terminal at the source of supply.
5. Drop vacant pool turn and use next out pool turn.

This process, or some agreed-to variation, has been adopted at Sparks (RT44), Winnemucca (RT46), Tucson (RT70, RT71 and RT72), Phoenix (RT74), and El Paso (RT44 and RT50).

All other locations are using some form of the following process:

1. Pool.
2. Primary extra board.
3. Secondary extra boards.
4. Senior demoted conductor with full rest.  (Call all in reverse seniority order).
5. The senior regularly assigned conductor with home terminal at the source of supply.  (Call all in descending seniority order).
6. Senior person on bump board.
7. Use employee off assignment to fill the vacant turn.
 
Page 2
J. Kevin Klein, General Chairman
UTU
______________________________________________________________________________

Unfortunately, this volunteerism effort to achieve change has stalled.  With the expanding and forthcoming implementation of CMTS, we need to adopt a single, uniform vacancy procedure for the entire Western Lines.  Accordingly, it is the intent of the Company to uniformly apply the five-step vacancy procedure previously proposed, and outlined above, at all Western Lines locations effective October 1, 2005.

I know we have been over this before, but for purposes of clarity, I want to review the foundation for the Company’s position on pool freight vacancy procedures.  Article 53, “Assigned Trainmen Performing Extra Work”, and the interpretations of that rule are the drivers for the changes that need to be made to existing vacancy procedures.  Article 53, Section C, Paragraph 1 states as follows:

“In the absence of an available conductor on the freight conductors’ extra list, or an available emergency conductor, making it necessary to use a regularly assigned conductor to fill a vacancy in assigned freight service, or as conductor in unassigned freight service, the senior available regularly assigned freight conductor with home terminal at the source of supply, which protects the service, will be used.”

The first noteworthy point is that Section C, Paragraph 1, specifies the extra board is to be used first to fill the vacancy.  The rule does not require that secondary extra boards be used to protect the vacancy.  There is, therefore, no agreement support for inclusion of secondary extra boards in the vacancy procedure.

Second, Section C, Paragraph 1, makes reference to use of an available emergency conductor.  An emergency conductor is a demoted conductor working as a brakeman.  Nothing in this section of the rule or anywhere else in the agreement requires that all demoted conductors be called.  The only requirement is that the demoted conductor be “available”.  The word “available” addresses rest and generates Step 3 of the earlier proposed vacancy procedure.  Step 3 involves calling, in sequence, the senior, fully rested demoted conductor.

For the next step in the vacancy procedure, Section C, Paragraph 1, dictates use of the senior, rested, regularly assigned conductor at the source of supply.  The contract points precisely at the individual who is obligated to protect this service.

At this point, the contract falls silent as to how to protect the vacancy.  At this point, we must turn to on-property precedent for guidance as to how to protect the service.  This is where Special Adjustment Board No. 18, Decision No. 5198 comes into play.  That award, in its broadest meaning, says that when a following crew in a pool is used ahead of the first out crew which cannot be used due to an unfilled vacancy on the crew, there is no runaround and no contract violation.  More specifically, the award makes it clear that employees in a pool used on their own turn are not entitled to a penalty.  In the case leading up to the award, Pool Crews 233, 235 and 242 were used, while Crew 217 was held first out with a crew vacancy waiting to be filled.  Each of the crews used – 233, 235 and 242 – was used on its own turn.  It is beyond cavil that pursuant to the award, after the normal vacancy procedures are exhausted, the work comes back to the pool and crews are used in turn on their own turns to protect the service.
 
 

Page 3
J. Kevin Klein, General Chairman
UTU
______________________________________________________________________________
 

The only element on which the pending vacancy procedure goes beyond the award is in specifying that the vacant turn (217 in Case 5198) will be dropped to the foot of the pool to bring the following turns up to first out position instead of holding the vacant turn first out.  Dropping the turn does not violate the contract, is consistent with standard practices used elsewhere on the system, and is superior to holding the vacant turn first out.  Holding the vacant turn first out is deceptive in terms of misleading the following crews as to where they stand.  For example, the second out crew could look at a train line-up and see the first train in two hours and the second train in six hours, and conclude from that, that they should prepare for the train six hours away.  This is deceptive because, in fact, the second out crew is actually in line for the first train.

Holding the vacant turn first out also has the effect of taking pool work away from the pool and giving it to the extra board.  Since the time of the merger implementation with virtually everyone having high merger guarantees, the name of the game at many locations has been to minimize work and maximize guarantee.  In that environment, passing pool work off from the pool onto the extra board got people what they wanted – less work and more guarantee.  With merger protected people attriting out and non-guarantee new hires coming on board, we are now well into a generational shift. With more and more non-protected people in the pools, it makes sense to keep pool work in the pool.

An incident at Roseville on Sunday, August 7, 2005, highlights the need for this change.  CMS called 57 people in an effort to fill a vacant conductor’s job.  While CMS was doing this more trains arrived at Roseville.  The result was a logjam of trains.  If the new vacancy procedure had been in place this would not have happened – the vacancy would have been filled with a maximum of five calls.  Since we are a service industry we need to structure our processes to facilitate rather than impede our ability to provide service.  This is especially true when, as here, the better process complies with the labor contract.

I suggest we meet in my office as soon as possible to discuss the process for an orderly transition to implement this uniform vacancy procedure.  In view of the importance of this subject I have rearranged my schedule to be available Friday afternoon, August 26th at 2:00 p.m. or Tuesday, August 30th in San Francisco at 3:00 p.m.  Please advise.

       Sincerely,
 

Al Hallberg
Director, Labor Relations
AH-Klein154