Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27979
THIRD DIVISION Docket No. MW-26791
89-3-85-3-548
The Third Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company
(Southern Region)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned Welding
Department forces (Welding Force 1170) instead of Track Department forces to
perform track maintenance work on the New River Sub-division on August 27, 28,
29 and September 6, 1984 (System File C-TC-2496/MG-4903).
(2) Because of the aforesaid violation, Foreman Dan Harrah and the
senior member of his force shall be allowed one hundred four (104) hours of
pay each at their respective 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.
In the instant claim the Organization alleges that the Carrier used
welding forces on four (4) different dates to do trackmen's work in violation
of various Rules of the Agreement, particularly Rules 1, 2 and 3 dealing with
Scope, Seniority and Seniority Rosters, and Rule 66 dealing with Classification. In denying the clai
to perform their welding duties on the dates in question because of weather
conditions and they were, therefore, properly assigned to assist track forces.
The Carrier also cites Rule 59, the Composite Service Rule, as justification
for denying the claim.
Form 1 Award No. 27979
Page 2 Docket No. MW-26791
89-3-85-3-548
The issue here centers on whether the welding forces were substituting for track forces and/or w
time in question. It is axiomatic that if they were doing the former the
claim must be viewed in the context of a potential infraction of the Scope and
Seniority Rules cited by the Organization, if the latter, ,justification for
the actions by the Carrier can be found under aegis of de minimus doctrine
(See Third Division Awards 20311, 23355; Fourth Division Awards 1486, 2122,
3168; also Third Division Award 14321 for the distinction between supplementing and substituting wor
March 21, 1985 letter to the General Chairman that the "welders were not able
to perform their welding duties" on the days in question is not sufficiently
disputed by the Organization on property. The Carrier was not constrained by
any Agreement Rule Cited by the Organization from assigning welders, in supplementary manner only, t
what the Carrier did. The Carrier references Rule 59 to justify its actions.
Such is inappropriate, however, as the Organization correctly argues. Rule 59
only deals with compensation and related issues when an employee is "required
to fill the place of another ...receiving a higher rate of pay..." and so on.-
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 29th day of June 1989.