NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-23108
Joseph A. Sickles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Missouri Pacific Railroad Company
( (Former Texas and Pacific Railway Co.)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when Patrol Foreman K. R. Austin
was not called to perform overtime service patrolling track on his assigned
territory (Mile Post 120 to Mile Post 217) on December 10 and 11, 1977,
January 1, 2, 14, 217 28, February 18, 19, April
7
and May' 1, 1978
(Carrier's Files S 247-5657 310-236 and S 310-245 310-27+6).
(2) Patrol Foreman K. R. Austin now be allowed fifty-nine and
one-half (59-1/2) hours of pay at his time and one-half rate because of the
aforesaid violation."
OPINION OF BOARD: The Claimant is a Patrol Gang Foreman, working Monday
through Friday.
On certain claim dates, the Carrier used a Section Foreman to
patrol track between Mile Post 120 and Mile Post 217 (Claimant's assigned
territory).
In this particular dispute, the Employes cite Section 1(j) of
Rule 14:
"(j) WORK ON UNASSIGNED DAYS. Where work is
required by the carrier to be performed on a day
which is not a part of any assignment, it may be
performed by an available extra or unassigned employe who will otherwise not have forty (40) hours
of work that week; in all other cases by the regular
employe.,,
The Carrier has raised the contention that the Claimant was not the
only employe to perform patrolling duties, and it argues that patrolling of
track is part of the assigned duties of all Foremen, to be performed during
their regular work week.
Award Number 23357 Page 2
Docket Number MW-23108
The Organization points out that "work on the unassigned day"
rule stands on its own merits and does not require a showing of "exclusivity."
Be that as it may, the Board is of the view that a factual matter distinguishes this claim from other claims which have been the basis for the justcited conclusion. In this case, the Carrier has maintained - and we see no
evidence to the contrary - that the employes who were called do more than
merely "patrol track." The Carrier asserts that other employes besides
the Claimant patrol the particular specific track in question during the
work week and thus, the Carrier concludes that the senior employe may be
selected when work is shared by several employes during the week.
Thus, limited to the facts of this particular case, we are inclined to find that this Claimant would not fall within the definition of
the "regular employe" to the exclusion of the employes who were utilized.
Based upon that factual conclusion, the claim is denied.
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 not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 14th day of August 1981.