Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27851
THIRD DIVISION Docket No. SG-27009
89-3-86-3-49
The Third Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Baltimore and Ohio Chicago Terminal Railroad Company
(B60 CT)
STATEMENT OF CLAIM: "Claim on behalf of the General Committee of the
Brotherhood of Railroad Signalmen on the Baltimore and
Ohio Chicago Terminal Railroad Co. (B60 CT):
(a) Carrier violated the current Signalmen's Agreement as amended,
particularly the Scope, when it failed to call the senior employees to do the
work required by the M.C.I. construction Co. working on the Baltimore 6 Ohio
Chicago Terminal Railroad.
(b) Carrier should now be required to compensate its signal employees assigned to maintenance du
Signal Maintainer North Harvey and Mr. Kenneth Roche 1. D. No. 1597804 Signal
Maintainer Argo, IL for all lost wages.
(c) Carrier has not been calling the proper employees to work the
overtime on rest days and holidays. Mr. M. Indicavitch, I. D. No. 1598419
Blue Island Maintainer has been temporarily off call. That would make Mr. Wm.
Krueger Sr. the next senior employee for all and any overtime on that territory. Mr. K. Roche is the
one called for any and all overtime on his territory. (Carrier file: 3-SG759)"
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The instant Claim involves an allegation by the Organization that the
Carrier was in violation of Rules 15(g) and 21 of the current Agreement when
it used a junior Signalmen on five different dates in September, October and
November of 1984 to work overtime, rather than the two Claimants.
Form 1 Award No. 27851
Page 2 Docket No. SG-27009
89-3-86-3-49
The Rules state, in pertinent part, the following:
"Rule 15(g)
When overtime service is required of a part of
a gang or group of employees, the senior employees
of the class involved, who are available, will have
preference of such overtime if they so desire."
"Rule 21
NOTIFYING DESIGNATED OFFICER WHEN LEAVING HOME
STATION
Employees assigned to regular maintenance duties
recognize the possibility of emergencies in the
operation of the railroad, and will notify the
person designated by the Management where they may
be called. When such employees desire to leave
their home station or section, they will notify the
person designated by the Management that they will
be absent, about when they will return, and when
possible, where they may be found."
The facts of the case are that the Carrier leased right of way work to a
contractor, MCI Corporation with the understanding that Signalmen working for
the Carrier would work with MCI to locate signal cables. From the latter part
of September through about the middle of November of 1984 this contractor
surveyed locations from Barr Yard to Pine Junction which is territory covered
by the junior Signalman to this case. This Signalman was assigned to work
with the contractor. On five (5) dates, which included one (1) Friday and
four (4) Saturdays, this junior Signalman was requested by the Carrier to work
overtime to complete work begun with MCI during his regular workweek. It is
these dates which are in dispute.
In view of the facts of record the Board must dismiss the contention
by the Organization that Rule 21 was violated. This Rule does not apply to
the instant case. Did Rule 15(g), however, require the Carrier to call the
two Claimants rather than the junior Signalman for the overtime hours?
Because of the particulars of the arrangement which the Carrier had with the
contractor, the Board believes that it would be incorrect to interpret the
overtime service which the junior Signalman worked as "...overtime service...
required of a part of a gang or group of employees...". The junior employee
was working with the contractor because of the contractual arrangement which
the Carrier had with the latter. Third Division Award 19752 arrives at a
similar conclusion with respect to the interpretation of a Rule similar to
15(g). The Board also believes, as an additional point, that the Carrier was
not in violation of the Agreement by assigning overtime to a junior employee
if such flowed from his specific assignment. Precedent for such conclusion
can be found in Public Law Board 1660, Award 37 which states the following in
pertinent part:
Form 1 Award No. 27851
Page 3 Docket No. SG-27009
89-3-86-3-49
Since the overtime work accrued to or flowed
from the assignment of the junior employee, the
Board does not find it a violation of any principle
of seniority, or any contract rule, for the Carrier
to permit the junior employee to complete the work
of his assignment, albeit on an overtime basis.
Absent a specific contract rule that provides that
seniority shall be applied on an absolute basis, it
was neither improper not unfair for the Carrier to
allow the incumbent of the position to work over
time on his job rather than assign the overtime
work to a senior employee who was the incumbent of
a different position."
The Organization argues in its rebuttal that Rule 15(g) does apply since the
Claimants also were assigned to work with MCI in their territories doing the
same thing as the junior employee and were, therefore, "...part of a gang or
group of employees...". The Board believes that the facts more reasonably
support the conclusion that it reached in the foregoing on this issue. The
Organization also argues that the overtime did not represent an extension of
an existing assignment, but that it was work done "...on the Claimants' territories and (on) their r
overtime on the Claimants' territories on the five (5) days in question. The
Carrier admits that this happened on September 29, 1984 but for "less than one
hour...". This is never rebutted by the Organization. But even if this work
on this day did not flow from the junior Signalman's assignment, it would
reasonably fall under de minimus doctrine (See Fourth Division Awards 1486,
3168; Public Law Board 3840, Award 5 inter alia). On October 27 and November
3, 1984, the Carrier contends that the junior Signalman was "familiar with the
cable locates he had made in this area...", implying that it was his terri-
tory. Whether it was or not is not sufficiently clarified on property by the
Organization. On October 26, 1984 and November 10, 1984 the Carrier states
that either the contractor was not working at all on the former date where the
original Claim contended it (and the junior Signalman) were working, or the
Claimant in question himself was working for MCI on the latter date. The
issues with respect to who was working where and when are raised by the
Carrier in its January 17, 1985 correspondence to the Organization. The
Organization, on property, never really responds to this letter, in detail,
with respect to these factual questions with the exception of the September
29, 1984 date cited above.
In view of the record as a whole the Board must conclude that the
Organization, as.moving party, has not sufficiently met the burden of proof
in this Claim before the Board (Second Division Awards 5526, 6054; Fourth
Division Awards 3379, 3482; Public Law Board 3696, Award 1).
Study of the Submission by the Carrier shows arguments not introduced
during the handling of the case on property. By precedent such cannot be used
by the Board here in its deliberations (Third Division Awards 22054, 25575,
26257; Fourth Division Awards 4112, 4136, 4137).
Form 1 Award No. 27851
Page 4 Docket No. SG-27009
89-3-86-3-49
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 13th day of April 1989.