NATIONAL RAILROAD ADJUSTMENT BOARD
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE
OF
WAY EMPLOYES
BURLINGTON NORTHERN INC.
(Formerly Chicago,
Burlington & Quincy Railroad Company)
STATEMENT OF CLAIM:
Claim of the System
Committee of
the
Brotherhood that:
(1) The Carrier violated the Agreement when it assigned the
Bridgeport Section Gang instead of the Edgemont Section Gang to
perform the work of unloading ties
between M
.P. 368 and Crawford,
Nebraska on February 24, 25, 26 and March 3, 4 and 5, 1969.
(2) Section Foreman L. D. Scott and Section Laborers J. W.
Brown, P. Martinez and L. A. Brown each be allowed forty-eight
(48) hours' pay at their respective straight time rates
because of
the violation
referred to
within Part (1) of this claim.
(3) The Carrier shall also pay the claimants six (6%) percent
interest per
annum on the monetary allowances accruing from
the initial claim date until paid.
EMPLOYES' STATEMENT OF FACTS:
The claimants are the foreman and members of the section gang at Edgemont, South Dakota. Section
foremen and
section laborers hold Grade A and C seniority respectively
within Group 1 of the Track Sub-department in accordance with Rule 2(a)
which reads:
"(a) Employes assigned to constructing, repairing, and maintaining roadway and track and other work incident
thereto, shall
be
grouped and graded under the Track Sub-department as follows:
1 Section Gang, Extra Gang, Fence Gang and
Tile Gang Foremen .... .. . A
Section Gang, Extra Gang, Fence Gang and
Tile Gang Assistant Foremen B
eight hours at pro rata rate for such work on each of the claim dates. The
claim is based upon the Employes' contention that the claimant Edgemont
gang, instead of the Bridgeport gang, should have been used to assist in
the unloading of ties between M.P. 368 and Hemingford.
OPINION OF BOARD:
The Organization bases its claim herein on the
grounds that Carrier violated the provisions of Rule 5(a) and (b) and Rule
13 (a) of the Agreement when it permitted employes of the Bridgeport
Section Gang to perform the work in question rather than Edgemont Section
Gang members, on whose seniority district the work was performed.
Carrier's prime defense to this claim is that Claimants
suffered no
monetary loss as a result of Carrier's action in this matter.
Carrier, on the property, in denying the claim, relied solely on the
defense that at no time were Claimants deprived of any earnings. Further,
Carrier admitted, by letter dated May 16, 1969 from Carrier's L. A. Johnson to General Chairman H. J. MeWilliams, that the Bridgeport Section Gang
was used on a seniority district on which they held no seniority. Thus having
admitted to the violation, we will sustain paragraph (1) of the claim.
In regard to damages, Claimants herein have failed to show any monetary
loss as a result of said violation, and since this Board is not authorized to
assess a penalty, we will deny paragraphs (2) and (3) of the claim.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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 involved herein; and
That the Agreement was violated in accordance
with the Opinion.
AWARD
Paragraph (1) of the Statement of Claim is sustained.
Paragraphs (2) and (3) of the Statement of Claim are denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 4th day of December 1970.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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