Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27901
THIRD DIVISION Docket No. MW-27270
89-3-86-3-357
The Third Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak) -
( Northeast Corridor
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it required Messrs. M.
Puzio, R. De Carlo, T. Miller, G. Montour, R. Aylor, C. Perch, F. Picciotti,
K. McDaid, and D. Pollard assigned to Gang C-242 to suspend work for four (4)
hours on January 22, 1985 (System File NEC-BMWE-SD-1242).
(2) Because of the aforesaid violation, the claimants shall each be
allowed four (4) hours of pay at their respective straight time rates."
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.
On January 22, 1985, Gang C-242 reported for its assignment at Bridge
No. 60.07 over the Susquehanna River. It was determined that the weather was
too severe that day to permit work on the bridge, and the gang was sent home
with four hours' pay.
Rule 52 states, in pertinent part:
"When the foreman and supervisor in charge determine that
weather conditions prevent work being performed, employees
in gangs of ten (10) or more reporting at their regular
starting time and place for the day's work will be allowed
a minimum of four (4) hours . . .; if held on duty beyond
four (4) hours . . . they will be paid on a minute basis."
Form 1 Award No. 27901
Page 2 Docket No. MW-27270
89-3-86-3-357
The Organization alleges that the Carrier violated Rule 52 when it
paid Gang C-242 for only four hours on the Claim date, since the gang consisted of fewer than ten em
eight hours of work under Rule 32 (Forty Hour Work Week), the Organization
maintains.
The Carrier contends that Gang C-242 was authorized for eleven men;
therefore, Rule 52 provides that only four hours of pay was required in this
case.
Other issues raised by the parties already have been addressed in
Third Division Award 27810. It has been established that the weather was sufficiently severe
was not obligated to find other work for the employees. The crucial issue in
this case is the size of the gang involved as it relates to Rule 52.
The Carrier provided with its Submission a list of assigned employees
on the Baltimore Division as of January 15. (The year was not indicated; we
presume it was 1985.) This list shows that Gang C-242 consisted of Foreman
Puzio, eight named employees (the Claimants), and three vacant positions. The
Organization cites another Carrier document, dated September 15, 1984, which
lists the size of force for Gang C-242 as "08." Since this is an older document, it is not as persua
The record indicates that Foreman Puzio and all eight gang members
identified by name in the Carrier's list reported for work on January 22, 1985.
The Carrier argues that Gang C-242 was authorized for eleven men,
and the authorized size is controlling. (Presumably, the Carrier does not include the Foreman in the
positions plus a Foreman.) otherwise, the Carrier states, the application of
Rule 52 could be manipulated by those employees in excess of nine simply failing to report. The Carr
strength to determine the applicability of Rule 52 since it was negotiated in
1982."
.
The Organization explains that prior to the 1982 modification to Rule
52, the Carrier was obligated to pay all employees for eight hours if they reported to work as assig
to find alternative work for large gangs, the Organization agreed to a compromise, permitting the Ca
pay. It was understood, the Organization maintains, that alternative routine
maintenance work always could be found for smaller gangs. Therefore, the key
issue under Rule 52, according to the Organization, is the number of employees
for whom the Carrier would have to find alternative work. In this case, the
number was fewer than ten.
Form 1 Award No. 27901
Page 3 Docket No. MW-27270
89-3-86-3-357
The Carrier has not disputed the Organization's description of the
genesis of the 1982 modification to Rule 52. Therefore, we accept that explanation, and find that it
argument that Rule 52 should not have applied in this situation.
A careful reading of Rule 52 also clarifies the meaning of the provision. Rule 52 applies to "ga
to work that determines whether employees sent home due to severe weather will
be paid for a minimum of four hours or paid for a full day.
It should be noted, too, that Gang C-242 only had a Foreman plus
eight employees assigned on January 22, 1985. Three "authorized" positions
were unassigned. This particular case did not involve any employees failing
to report.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. v -Executive Secretary
Dated at Chicago, Illinois, this 4th day of May 1989.
CARRIER MEMBERS' DISSENT
TO
AWARD 27901, DOCKET MW-27270
(Referee Sickles)
In Third Division Award 27810 (Sickles) involving Rule 52,
the Board held:
"It is an accepted principle that once an issue
between the same parties has been decided, a subsequent
arbitration on that same issue will follow the original
holding unless it can be shown that the original decision
was palpably erroneous. This principle applies regardless of how the subsequent arbitrator might hav
had he heard the case .in the original instance."
One of the Awards furnished the Majority was Third Division
Award 26778, wherein the Board held:
"Thus, Rule 52 permits payment of less than eight
hours for shortened work days due to weather related
conditions for gangs of ten or more. Under the
circumstances of this case, we do not agree with the
Organization that Rule 52 is inapplicable because the
actual number of employees reporting for work on the
days in issue was less than ten per gang. It is
undisputed that the gangs were authorized at levels in
excess of ten employees per gang. A fair reading of
Rule 52 is consistent with the Carrier's position that
the overall makeup of the gang dictates application
of the Rule."
Awards 26778 and 27901 involve the same issue. The only
Award cited by the Majority was Award 27810. Notwithstanding
what the Board held therein, the Majority here made no effort to
distinguish Award 26778. In our view, since Award 27901 did not
find Award 26778 palpably erroneous, Award 27901 is itself
palpably erroneous.
See Award 27773 involving the very same issue wherein the
Board adhered to the "accepted principle" and followed the
precedent established by Award 26778.
Dissent to Award 27901
Page 2
We Dissent.
M. C. LESNIK
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