BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
CHICAGO GREAT WESTERN RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood, that:
EMPLOYES' STATEMENT OF FACTS: Beginning on January 25, 1952, and continuing through March 27, 1952, Extra Gang No. 3 was directed to and did perform the work of cutting brush along the Carrier's right-of-way in the vicinity of McClelland, Iowa. Approximately 1685 total man-hours were consumed by extra gang forces in cutting brush.
The Carrier made no attempt, either prior to or during the period herein involved, to either increase its regular section forces or to double up adjoining section gangs for the purpose of cutting this brush. The Carrier made no attempt to establish floating section gangs to supplement existing section forces such as has been done in the past by agreement with representatives of the Employes.
Extra Gang Laborers are paid six cents an hour less than section laborers, and have not heretofore been recognized as having any right to work involved in cutting brush; the exclusive right to such work being vested in the section forces by a long established interpretation and application of Agreement rules.
The violation of the Agreement was protested and suitable claim filed with the Carrier; claim was declined throughout all stages of handling on the property.
Attention is called to the fact that the Employes have not made any claim in behalf of the members of Extra Gang No. 3 for a higher (section laborers') rate of pay, indicating they were not improperly used.
The Carrier has shown that the governing agreement does not impose the limitation on the duties of extra gang laborers which is contemplated by the action of the Employes in this case, and claim should, therefore, be denied.
OPINION OF BOARD: The historical background of this claim is, in brief, that by reason of a neglected condition in the removal of brush along Carrier's right-of-way near McClelland, Iowa, the Iowa State Commerce Commission directed that the same be removed. The Carrier had this work performed by use of Extra Gang No. 3 in a period from January 25, 1952, to March 27, 1952, both dates inclusive.
The record shows that prior thereto there had been a curtailment or reduction in forces and there were, at the time in question, men on furlough.
There is a conflict in the record relative to these furloughed men, Carrier asserting there were none available, the Organization denies this and gives four methods by which this work could have been done, namely:
We are of the opinion that the work done comes within the Agreement and hence Carrier's failure to use the employes coming within the purview of the Agreement was a violation thereof. Claim (1) therefore should be sustained. On Claim (2) the matter of payment is more difficult to determine by reason of the fact there are no individuals named as claimants.
However, we view this record as showing that there were furloughed employes. In Award 6664 we said, in a similar situation, on a monetary claim:
In the instant case we deem it shown that districts were extended and employes with seniority standing who were in a furlough status within the 6931-15 331
district should have been used. Carrier states the urgency of the work necessitated immediate attention and it took the only course available to it in this situation. Petitioners allege that no effort was made to contact furloughed employes with seniority standing.
On the entire record, claims and counter-claims, we are of the opinion that Claim (2) should be sustained as to furloughed employes, in accordance with seniority status, who can show by positive proof that tey were available, at the time in question in this claim, to perform this work and that such employes coming within such category be paid at pro rata rate.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute herein; and
That Claim (2) is sustained in accordance with Opinion by reason of the violation of rules of the Agreement.
NAME OF ORGANIZATION: Brotherhood of Maintenance of Way Employes.
Upon application of the representatives of the employes involved in the above Award, that this Division interpret the same in the light of the dispute between he parties as to its meaning, as provided for in Section 3, First (m) of the Railway Labor Act, the following interpretation is made:
The dispute arises as to what constitutes "positive proof" of availability within the intent and purpose of the last paragraph of Opinion of Boar, reading
It would seem through the process of elimination the list has narrowed down to 13 employes who it is contended, comply with the provisions of the Opinion of Board set out above in Award 6931.
It appears to us that of those employes now being considered as eligible for payment that a showing should be made,
In view of the above we think that an additional and more definite showing is necessary than that made to date and that the same be in keeping with the points set out.