NATIONAL RAILROAD ADJUSTMENT BOARD
William H. Coburn, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
THE NEW YORK, CHICAGO AND ST. LOUIS
RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the effective Agreement when it assigned track forces (Sections 17 and 18) instead of B&B forces to
dismantle an old and construct a new wood-bituminous highway
crossing at Mile Post 162-33-34 at First and High Streets in Albany,
Indiana.
(2) The Carrier further violated the Agreement when it failed
and refused to compensate the track crews from Sections Nos. 17
and 18 at applicable B&B rates of pay for the performance of the
work referred to in Part (1) of this claim.
(3) Track Foreman Hansel Beal (Section No. 18) and Track
Foreman Raymond Ruble (Section No. 17) each be allowed the difference between what they should have been paid at B&B foreman's
rate and what they were paid at track foreman's rate for five and
one-half hours consumed in supervising and directing the performance of the B&B work referred to in Part (1) of this claim.
(4) Trackman Charles Youngblood, Charles Jellison, George
Stephens (all from Section No. 18), Jack Stephens, Russell Harness
and Riley Reff (from Section No. 17) each be allowed the difference
between what they should have been paid at carpenter's rate and
what they were paid at trackman's rate for five and one-half hours
which each consumed in performing the B&B work referred to in
Part (1) of this claim.
EMPLOYES' STATEMENT OF FACTS: There is no real or substantial
disagreement on the facts involved in this case, as evidenced by the facts as
related respectively by Vice-Chairman Durr in his letter of claim presentation and by Chief Engineer Whitmore in his letter of claim disallowance,
their respective versions reading:
[8661
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(c) that Rule 51 (Composite Service) does apply to the work in
question;
(d) that Rule 52 is a penalty rule, and if applied then Rule 51 has
no application;
(e) that Rule 52 is a penalty rule per se and that Rule 51 also
applies to the same work;
(f) that a bituminous highway crossing is a wooden platform, a
wooden vehicular or vehicle crossing;
(g) that a bituminous highway crossing is not a bituminous highway crossing because it is composed mostly of stone and requires barriers of wood or other material; and
(h) that the application of the rules in similar situations depends
entirely on how inconsistent the Employes choose to be in a
particular case.
The Carrier, of course, does not challenge the right of the Employes to
police the agreement and bring any case to this Board for adjudication, but
it does feel that in this series of cases, of which the instant claim is but one,
the Employes seek to obtain separate decisions from your Board that may be
inconsistent among themselves. It is apparent that the Employes are reluctant to meet the principal issues head-on and by using shotgun tactics are
hoping that your Board will attach some weight to one or more of their
alternate theories which they may then use to their advantage.
As to the merits of this particular claim, the Carrier has shown that the
portion of the work made the subject of this claim was work on a "bituminous
highway crossing and other work incidental thereto" as contemplated by
Rule 52(c) and the claim is without basis and must be denied.
(Exhibits not reproduced.)
OPINION OF BOARD: The parties, the facts, the issue and the Agreement in effect in this docket are substantially the same as those upon which
the Board rendered Award No. 12731.
That Award, therefore, applies and is controlling here. The claim, accordingly, will be denied.
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 respec.
tively 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 involved herein; and
That the Agreement was not violated.
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AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 14th day of July 1964.