NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25719
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company (former St. Louis(San Francisco Railway Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier failed to maintain
the required ratio of B&B helpers on B&B Gangs 40 and 41.
2. As a consequence thereof:
(a) B&B Helper J. Corum shall be compensated for all wage
loss suffered beginning sixty (60) days retroactive from September 10, 1982
and continuing until the violation is corrected (System File B-1919/MWC
82-3-17A).
(b) B&B Helper S. D. Land shall be compensated for all
wage loss suffered beginning sixty (60) days retroactive from November 17,
1982 and continuing until the violation is corrected (System File B-2163/MWC
83-3-17C).
(c) B&B Helper J. W. Bolin shall be compensated for all
wage loss suffered beginning sixty (60) days retroactive from December 1, 1982
and continuing until the violation is corrected (System File B-2166/ MWC
83-3-17D)."
OPINION OF BOARD: The question presented to the Board in the instant case is
whether Claimants Corum, Land and Bolin were improperly
furloughed. The Rule herein disputed with regards to its proper application
is Rule 30 which reads as follows:
"Rule 30. Ratio of B&B Mechanics
(a) Except as provided in paragraph (b), the
ratio of first class, second class, and third class
mechanics or helpers in a B&B gang will be
one-third of the total number at each rate. Where
the number of employes in a gang will not permit of
maintaining this ratio in individual gangs, it will
be maintained for gangs as a whole on a seniority
district.
(b) Where the preponderance of work requires,
the ratio of first class mechanics to either second
class or helpers may be exceeded".
Award Number 26070 Page 2
Docket Number MW-25719
Claimants were all Helpers in the Bridge and Building Subdepartment
and were furloughed at different times. The Organization argued Carrier violation of Rule 30(a) and
second and third class Mechanics as probative evidence of a Rule violation
wherein it was alleged that Carrier maintained a disproportionate number of
first and second class Mechanics while furloughing Helpers. In defense of its
action, the Carrier maintained that it did not violate Rule 30(a) inasmuch as
Rule 30(b) allowed for such disproportionate assignment "where the preponderance of work requires" a
Carrier argument of rebuttal in this unadjusted dispute until the final conference letter ten (10) m
of a Rule violation.
In its final letter of July 19, 1983, the Carrier notes for the first
time new issues including (a) that the Claim was untimely filed, (b) was not a
continuing Claim and that (c) restitution was a fatal variance with the
initial Claim and without Rule support. The General Chairman did not rebut
what was raised in final conference. Prior correspondence takes no exception
to any of these issues. Organization letters of October 28th, November 29th,
and December 14, 1982, for example are not challenged by the Carrier acknowledging that such dispute
procedural issues nevertheless challenge the right to consider the substantive
Rule before the Board. With respect to the procedural issues this Board does
not find such arguments as persuasive when set against the merits of the case.
In particular, a careful review finds no evidence that a modified Claim either
misled the Carrier or resulted in a new Claim. As such, this Board turns to
the merits of the case.
The issue before this Board in the instant case is whether Rule 30(a)
or 30(b) is controlling and whether the evidence of record substantiates the
alleged violation. The Organization maintained that Rule 30(a) was controlling in that the "type of
The record as established on property and not disputed by the Carrier, shows
that the ratio of first, second and third class Mechanics in Gangs 40 and 41
when the Claimants were furloughed was as follows: five (5) first, six (6)
second and one (1) helper (and subsequently none when Bolin was furloughed).
As such, the language of the Agreement Rule and the probative evidence substantiate the Organization
In support of Carrier's action, it is maintained that Paragraph (b)
of Rule 30 allows the prescribed ratio of first-class Mechanics to either
second-class or Helpers to be exceeded "where the preponderance of work requires". Carrier argues th
forces proportionately.
This Board takes note that the probative evidence and controlling
Rule establish a violation by the Carrier. Rule 30 clearly fixes Carrier's
rights to establish crew size and restricts Carrier to the language of the
Agreement. This Board notes that there is no evidence of record that Rule
Award Number 26070 Page 3
Docket Number MW-25719
30(b) was the controlling and applicable Rule. Even if it was work as contemplated by the Agreem
support the ratios existing in the case at bar. Rule 30(b) is clear as to
increasing the number of first class Mechanics. The evidence before this
Board shows more second class than first class Mechanics. As such, Rule 30(b)
which the Carrier maintains as controlling would also be violated. This Board
must hold for the Organization in that Rule 30 does not permit Carrier to have
proceeded in the manner herein determined. Claimants are due compensation for
that period of time as indicated in the Claim as presented to this Board, when
they were improperly in furloughed status.
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.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. Deer - Executive Secretary
Dated at Chicago, Illinois, this 8th day of July 1986.
DISSENT OF CARRIER MEMBERS
TO
AWARD 26070,
DOCKET MW-25719
(Referee Zusman)
The Award in this case ignored the Carrier's timeliness argument
which should have caused the Board to dismiss the claim, as improperly
handled on the property, without addressing the merits.
Claimants were furloughed on February 22 and September 24, 1982.
Claims concerning the February 22 furloughs were initially made on
September 10 and November 17, 1982 - some 7-9 months after the occurrence.
Claim concerning the September 24, 1982 furlough was made on December 1,
1982. The date furloughed is the date of occurrence required by Rule 90(a)(1);
note Pages 1 and 3 of the Award in this regard. The furloughs only occurred
once and as such are not continuing violations. Third Division Awards 14450,
23953, 23543, 21376, 21322, 20821, 20655, 19341, 15798, 14355, 12984, 12045.
This argument was recognized as being properly raised at Page 2 of the Award,
yet such was not found to be "as persuasive" in the desire to address the perceived merits of the ca
Further, even on the merits, the first phrase of Rule 30(a):
" ....except as provided in paragraph (b)
...."
provides an exception. Carrier, on the property, detailed the specific work
to be performed demonstrating that the "preponderance of the work required"
substantiated the need for the higher classification. Such was never rebutted
on the property, and as such the appropriate rule to apply was 30 (b) and not
30(a).
DISSENT OF CARRIER MEMBERS TO
- 2 - AWARD 26070, DOCKET MW-25719
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