(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood.that:

 (1) The Carrier violated the Agreement when it required Messrs. C. Smith, J. Dodd, E. Downey, E. Mininchelli, K. Gaymon, C. McCartney, D. Strallow, B. Goethie and R. Holmes assigned to Welding Gang N022 to suspend work for four (4) hours on December 16, 1982 (System File NEC-BMWE-SD-600).

 (2) Because of the aforesaid violation, the claimant shall each be allowed four (4) hours of pay at their respective straight time rates."









The above language was effective May 27, 1982, and represented a modification of the following:








Thus, there seems to be no dispute that the modification was intended to grant relief to the Carrier from the requirement to make payment for a full eight hours when conditions prevented less than a full day's work _for gangs of ten (10) or more.

 In this last respect, the Organization contends in its Submission that the Gang consisted of less than 10 employes, therefore, the employes would be entitled to the full day's pay.

 The Carrier raised an objection in their Rebuttal brief that the Employes had never raised this issue in the handling on the property. The Organization did point out, before the Board, that there were only nine Claimants listed implying that, based on this, the fact there were nine on the Gang was self-evident. However, the Carrier appropriately points out that the fact there are nine Claimants doesn't mean the Gang in question was less than 10. As they point out, one or more could have been absent. It may have been possible as well that one or more declined to be listed as a Claimant.

 In any event, the Board is satisfied that the Claim as it existed on the property was not based on the theory that Rule 52 did not apply because the Gang in question involved less than 10 employes. We must limit ourselves to the issues raised by the Parties before the Claim was appealed to the Board.

 The basic contention advanced by the Organization on the property was that Rule 52 did not apply because the Supervisor did not seek the Foreman's concurrence that th Indeed, the Union contended that there was various equipment maintenance that could have been performed.

 After a review of the record, the Board must agree with the Carrier. The Organization seeks to apply too strict of a construction to Rule 52.

 This is basically for two reasons. First, the Carrier validly argues that little relief from the dictates of the original Rule would occur for large gangs if the Rule allowed the Foreman, a bargaining unit employe, to insist on a joint determination whether conditions prevent "bus work" or "make-work projects." When the Rule talks of conditions preventing "work" being performed, it is most reasonable to conclude that it was referring to the Gang's regular and customary work, in other words, that work which related to its predominate and primary function. In this case, the Statement of Claim itself recognized weather conditions prevented the Gang from accomplishing its assigned task that day.

 The second respect in which the Organization interprets the Rule too strictly is their insistence, under these unique facts and circumstances, that there be absolute compliance with the requirement that a joint determination be made, that conditions prevented work from being accomplished. It is selfevident that this require In this case, there is absolutely no dispute that weather conditions prevented the Gang's work from being performed. The Claim not only recognizes this but
                        Award Number 26303 Page 3

                        Docket Number MW-26081


there is no evidence the Foreman took exception to the Supervisor's decision. Thus, the uncontested facts show that even if the Foreman had been consulted he would have been unreasonable in withholding his concurrence under these facts. The Organization's case would have been strengthened had there been a legitimate dispute over the necessity of weather conditions preventing the Gang's regular work from being accomplished.

        In view of the foregoing, 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:
        Nancy J ver - Executive Secretary


Dated at Chicago, Illinois, this 24th day of April 1987.