Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28185
THIRD DIVISION Docket No. MW-27788
89-3-87-3-286
The Third Division consisted of the regular members and in
addition Referee Irwin M. Lieberman 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 Agreement was violated when, on November 14, 1985, the Carrier used Training Instructors
work in the Oil House in the Penn Coach Yard at Philadelphia, Pennsylvania
(System File NEC-BMWE-SD-1454).
(2) Plumbers B. Gunkle and F. Ruddle shall each be allowed eight (8)
hours of pay at their respective straight time rates because of the violation
referred to in Part (1) hereof."
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.
This dispute involves two Training Instructors who were inspecting an
oil house to determine whether it was a feasible site for training classes.
In the course of the inspection the instructors found that the basement was
flooded (due to a clogged drain). They obtained a pump, set it up, and operated it for the purpose o
it took eight hours for the work to be accomplished, whereas Carrier insists
that it was a total of merely two hours. Based on the record, the Board finds
that the time involved was two hours. The two Claimants herein, were plumbers, assigned to the B S B
men worked their normal assignments.
Form 1 Award No. 28185
Page 2 Docket No. MW-27788
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The Organization insists, first, that the work of pumping water in
connection with plumbing repair work has traditionally and historically been
performed by B&B subdepartment employees. Further, in this context, it is
argued that work of a class belongs to those for whose benefit the contract
was made. It is also urged that supervisory personnel outside the scope of
the Agreement cannot be used to perform scope covered work. It is maintained
that this dispute does not involve other crafts and thus exclusivity is not
the issue. With respect to remedy, the Organization argues that while Claimants were fully employed,
suffered a loss of work opportunity. Carrier could have rescheduled Claimants' regular work, resched
on an overtime basis. The Organization states, in addition, that it is essential that there be a rem
Carrier argues, alternatively, that the Scope Rule was not violated,
and that the Organization has failed to bear its burden of proof. Carrier
states that the work in question does not accrue to Claimants by history,
practice or custom, nor is it specifically delineated in the language of the
Scope Rule. Additionally, Carrier insists that the Claim is excessive.
It is the Board's view, contrary to Carrier's position, that the work
in dispute has customarily (though not exclusively) been performed by members
of the B&B Department. It would be wholly improper to assign such work to
supervisory employees who are not covered by any Agreement (See Third Division
Awards 25991 and 15461).
With respect to remedy, the Board recognizes that the Claimants were
fully employed during the period that the work was performed. However, Carrier has not introduced an
Clearly a monetary remedy is appropriate on two grounds: loss of work opportunity and, further, in o
record substantiates the fact that two hours was all that the work took.
Thus, Claimants are entitled to two hours pay each, but at the pro-rata rate
for work not performed.
A W A R D
Claim sustained in accordance with the Findings.
Form 1 Award No. 28185
Page 3 Docket No. MW-27788
89-3-87-3-286
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 20th day of November 1989.