NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20114
Frederick R. Blackwell, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Texas and Pacific Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
that:
(1) The Carrier violated the Agreement and the National Railroad Labor Act when it arbitrarily a
pay of the position of foreman on B&B Gang No. 301 (System Files K-31084 and K-310-85).
(2) Foreman C. C. Mudford and/or his successor or successors
be allowed the difference between what was paid at the rates unilaterally
applied by the Carrier and what should have been paid at the contractual
rates for all time worked as foreman of B&B Gang No. 301 since March 26,
1971. (All wage increases effective during the life of this violation
to be applied and paid for corresponding periods.)
(3) Claimant Mudford and/or his successor or successors be
allowed six percent (67.) interest per annum on all monetary payments
accruing as a result of this violation.
OPINION OF BOARD: In 1951 the pay rate of a position presently desig
nated as "Foreman B&B Gang 301" was fixed at a rate
higher than the rate applicable to other Foreman positions in the B&B
Department. (Schedule of Rates of Pay, page 33 of the Agreement effec
tive September 1, 1949). Originally, the higher rated position was
entitled "Foreman Pile Driver No. 1" The position's title was changed
to "Foreman B&B Gang No. 31" in 1964 and subsequently to the present
title of "Foreman
B&B Gang
301." In March of 1971 a temporary vacancy
occurred in the position and Claimant occupied the vacancy on March 26,
1971. Thereafter, the Carrier instructed the Claimant to reduce the pay
rate of the position, whereupon the Claimant's General Chairman advised
him to report the higher rate and, if not allowed, claim and protest
would be made. On April 21, 1971, the Carrier issued a bulletin adver
tising the existence of a new position for one Foreman B&B Gang 301 at
a lower pay rate than the rate previously applicable to the position.
On April 22, 1971, the Carrier abolished the position of B&B Foreman
Gang 301, to which the higher rate applied, due to the retirement of the
incumbent of the position. The Claimant bid in the new position carry
ing the reduced rate and then made claim for the difference between the
reduced rate and the previous, higher rate.
Award Number 20257 Page 2
Docket Number MW-20114
The Employes contend that Carrier's actions constitute a
unilateral reduction in a negotiated pay rate, which, in turn, constitutes
a violation of the Agreement. The Carrier's defense is that Gang 301 was
formerly a pile driver gang, but that the pile driver operation, requiring
the higher rate, has been eliminated, thereby automatically reducing the
rate to that of B&B Foreman on a gang without the pile driver. The details of this defense are r
"When this matter was investigated, it was developed
that an error was made in our rate sheets which were
issued subsequent to May 1, 1962. The rate sheets for
May 1, 1962 on the T&P Railway show the B&B Foreman rate
to be $468.01 per month, and after updating through April
1, 1971, the rate is $742.82 per month. The rate sheets
for May 1, 1962 also list a position of Foreman Pile
Driver No. 1 rated at $514.39 per month, effective May 1,
1962, and after updating through April 1, 1971 the rate is
$802.33 per month.
It appears the confusion relating to the rates
occurred after June 16, 1963 when pile driver No. 1 was
eliminated and former Pile Driver Foreman J. B. Henderson remained as B&B Foreman with Gang No.
become Gang No. 301 without a pile driver. However, Mr.
Henderson continued to claim and was erroneously allowed
the pile driver foreman rate even though the pile driver
had been eliminated. The error was not discovered by
the Carrier until after the National Agreement of February 7, 1965 was made and the former District
permitted Mr. Henderson to retain the pile driver foreman rate as his protected rate so long as he r
Gang No. 301. The rate sheets which were subsequently issued failed to list the Pile Driver Foreman
thereby reflecting an incorrect rate for B&B foreman.
After Mr. Henderson retired, the B&B Foreman position
on Gang No. 301 was properly rated in Bulletin No. 3 se
$742.82 because the Pile Driver Foreman rate of $802.33
does not apply and has not applied to Gang No. 301 since
the elimination of pile driver No. 1 in June, 1963."
Award Number 20257 Page 3
Docket Number MW-20114
The issue drawn by the foregoing, and the whole record, is
whether the agreement between the parties conditioned the higher rate
of pay of the position in question upon a pile driver being involved
in the work of Gang 301. The Carrier, in laying out the history of
the involved position, presents a plausible explanation of why the
higher rate of pay should have been tied to the use of a pile driver;
however, the Carrier must point to some supportive agreement provision,
to go along with its explanation, and this the Carrier has not done.
The mere listing of the position in 1951 as "Foreman Pile Driver No. 1"
does not signify the parties intent to condition the higher pay rate
upon the involvement of a pile driver. Further, the schedules of pay
rates in the record before us are totally silent on the reason for the
higher pay rate and the Carrier has not pointed to language elsewhere
in the agreement which would indicate that the higher rate was tied to
a pile driver. Nor has the Carrier offered any parole evidence to
prove that such was agreed to by the parties in a collateral agreement,
either oral or written. Thus, we have before us an agreement which contains an agreed rate of pay fo
but which contains no mention of the occurrence of any event which, as
Carrier says, "automatically" reduces the rate. Therefore, we can but
conclude that Carrier's unilateral reduction of the rate of the position
of B&B Foreman of Gang 301 violated the agreement and we shall sustain
paragraphs 1 and 2 of the claim. Award Nos. 1296 and 11368. We have
carefully studied the Awards cited by Carrier, but find them not pertinent to the facts of this case
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.
Award Number 20257 Page 4
Docket Number MW-20114
A W A R D
Claim sustained in respect to paragraphs 1 and 2, but
paragraph 3 is not allowed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: ~
Executi -cretardAA y
Dated at Chicago, Illinois, this 31st day of May 1974.