Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28214
THIRD DIVISION Docket No. MW-27839
89-3-87-3-352
The Third Division consisted of the regular members and in
addition Referee John E. Cloney when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier did not call Motor
Car Repair Foreman R. Guzman to perform overtime service in connection with
the supervision of three motor car repairmen on September 8, 26, 29 and 30,
1985 (System File SG-6-85/WM-15-85).
(2) The claimant shall be compensated as set forth within the initial
claim as follows:
'This claim is being submitted on behalf of R. G.
Guzman (66238). On September 8, 1985 for 8 hours
at time and one-half for his regular rate of pay
plus time and one-half for his regular shift on
September 9, 1985. On September 26, 1985 for 6
hours at time and one-half his regular rate of pay,
plus time and one-half for his regular shift on
September 27, 1985. On September 29, 1985 for 8
hours at time and one-half his regular rate of pay,
plus time and one-half for his regular shift on
September 30, 1985. On September 30, 1985 for 8
hours at time and one-half his regular rate of pay,
plus time and one-half for his regular shift on
October 1, 1985."
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.
Form 1 Award
No.
28214
Page 2 Docket
No.
MW-27839
89-3-87-3-352
Rule 4(c) provides:
"(c) An employe reporting directly to the Manager
Work Equipment and/or the Assistant Supervisor-Work
Equipment who is assigned to the assisting of either
of said officials in the supervision and direction of
the work of motor car repairmen and garage service men
as well as the performance of other work of the Scales
and Work Equipment Sub-Department shall constitute a
Motor Car Repair Foreman."
In its claiming letter of October 7, 1985, the Local Chairman con
tended:
"It has been a practice of the Gary Garage that if
3 or more men are working without a foreman a foreman
will be called. On the following dates the following
men worked in the Gary Garage without a foreman."
On December 6, 1985, the Manager-Scales 6 Work Equipment, declined
the Claim stating, inter alia:
"Having reviewed the above rules outlined above for
violation, I find no rule support for your claim. In
regard to the employment of a motor car repair foreman,
when working three or more men, company records will
indicate that this is not an established practice. Motor
car repair foremen are used when their expertise and/or
supervision are required without regard to number of employees working a given shift."
On January 28, 1986, the General Chairman asked the Manager-Scales
6 Work Equipment to reconsider pointing out that in a similar Claim three
years earlier the Supervisor had written:
"I am in receipt of your letter received at the office
of Division Engineer, Gary, Indiana, in which you are
requesting reimbursement to Foreman R. G. Guzman, Account
No.
66238, for sixteen (16) hours at time and
one-half, three (3) hours at two times his regular
Foreman's pay rate for March 14, 1982, and eight (8)
hours at time and one-half for continuous overtime for
March 15, 1982.
Company records indicate that Mr. Curtis did work on
March 14, 1982, bringing the Gary garage work force to
3 employees. I also realize that it has long been
past practice to work a Foreman when three or more employees are working. However, there were only t
employees on the property working for three and onehalf (3 1/2) hours and, therefore, beyond this pe
Form 1 Award No. 28214
Page 3 Docket No. MW-27839
89-3-87-3-352
the services of a garage foreman would not be warrant
ed. I, too, realize that had he been called out to
work the overtime that he undoubtedly would have been
kept eight (8) hours. As a result, I am placing your
claim in line for payment for eight (8) hours at one
and one-half times the Foreman's regular pay rate to
comprehend the loss due to not being called. The bal
ance of your claim is excessive and entirely without
merit and is therefore denied."
In subsequent correspondence Carrier argued:
. . . there is no rule of our Agreement, including
those cited, which requires the Carrier to utilize
a motor car repair foreman when three or more employes are working."
At a later conference Carrier furnished 12 Daily Reports of Labor to
establish three or more men worked on various dates without a Foreman and
without objection or Claim. On October 30, 1986, the Organization responded
the reports did not show the hours worked so that it couldn't be determined
how many of the employees were working at the same time. Apparently no answer
to this contention was ever made. On March 6, 1987, the Organization forwarded to the Director of La
Foreman reading:
"This is to verify that is has been past practice for
a Foreman to be called out whenever there were three
or more men working in the garage MCR or CSM at Gary
Kirk Yard.
/S/ Jesse B. Weldon"
A substantially similar statement from an Assistant Foreman was also forwarded.
On March 12, 1987, Carrier responded that it used Foremen when it
felt the need and no Rule states when a Foreman must be assigned. It further
contended the allowance of a single Claim at the initial level in 1982 did not
set a precedent.
Before this Board Carrier argues it has the right to determine the
size of its workforce unless limited by the Agreement. Further, even if there
had been a practice, the practice would have to yield to the clear and unambiguous Agreement languag
We may agree with Carrier that a past practice must yield when it is
in conflict with clear and unambiguous Agreement language, but we see no such
conflict here. We can find no tension between Rule 4(c), or any other cited
rule and a practice of calling a Foreman when three employees are working.
The Agreement neither requires nor prohibits such practice -- it is silent on
the question.
Form 1 Award No. 28214
Page 4 Docket No. MW-27839
89-3-87-3-352
The concept of past practice is no stranger to the field of industrial relations generally or to
Division Award 5167 we held:
"The record shows that it has long been an established practice for the Carrier to allow clerica
employes in the office of the Auditor Freight Accounts, St. Louis, Missouri compensation at their
regular rates of pay on days when they are absent
from their work because performing jury service or
serving as judges or clerks of elections, provided;
it was not necessary for the Carrier to fill their
assigned positions on those days and that Carrier
was not put to any additional expense by reason of
the employes being absent therefrom. This practice
had become a part of their working conditions.
As stated in Award 2436 of the Division: 'It is
fundamental that a practice once established remains
such unless specifically abrogated by the contract
of the parties."'
Again, in Third Division Award 18548 we stated:
"*** The Rules do not clearly and unambiguously
preclude such payments as Carrier contends. Since
the Agreement does not shed any light on the intent
of the parties, we must ascertain this intent from
past practice.
Carrier hes (sic) not refuted the Organization's
allegation that the practice of paying for noon
meals while employes were away from their assigned
home station though returning later on in the day,
has existed for at least twelve years. Rather,
they claim it was an error on their part which can
be terminated at will. We disagree. A past practice of at least twelve years duration clealy (sic)
indicates the intent of the parties, absent any contractual prohibition. And since the Agreement is
silent on this point, the past practice becomes the
Rule. If Carrier desires to change this practice,
it can seek power to do so at the bargaining table.
We are without power to do so. Consequently, we must
sustain the claim."
This Board does not view the01982 Claim settlement at the initial
level as precedent for us to follow. However, we cannot close our eyes to the
factual admissions made in the correspondence regarding that case. Those admissions coupled with the
persuasive evidence of a past practice. That evidence is not rebutted by
Form 1 Award No. 28214
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89-3-87-3-352
Carrier's Daily Reports of Labor, especially in view of Carrier's failure to
respond to the objection that the records do not establish which shift the
various employees worked. While the record does not establish the duration of
the practice it does show that as of May, 1982, it had "long been past practice." Thus it was more t
give rise to an enforceable practice.
In the recent Third Division Award 26438 this Board held:
"On April 1, 12, 13, 20 and 27, 1984, the Carrier
utilized a Welder and Welder Helper to perform work
on an overtime basis. Claimant, a Welder Foreman,
was not called to direct this work. After the Claim
was declined at each step on the property, Claimant
individually instituted proceedings before this Board
on May 23, 1985.
Claimant maintains that he is entitled to compensation because the Welders who performed the job
question were supervised by other supervisors, when
the supervisory work should have been assigned to
Claimant as Senior Welding Foreman.
After careful consideration of this matter, the
Board must reject Claimant's contentions. This Board
has consistently held that, unless otherwise specifically provided in the Agreement, Carrier has the
and exclusive right to determine when and under what
circumstances a foreman is assigned to supervise a
group of employes. The burden of proof is on the
Claimant to show that some Rule of the Agreement has
been violated. The Claimant in the instant case
has failed to sustain that burden. Accordingly, we
must deny the Claim."
Carrier relies heavily on this case but we believe that reliance is misplaced.
A careful reading of the Award gives no indication there was an assertion,
much less proof, of a past practice upon which the Claim was based. While we
agree entirely with the result in Third Division Award 26438, we do not believe it applies here nor
with management's undoubted right to determine the complement of its workforce, including the assign
hand Claimant, a foreman, is a member of the collective bargaining unit and is
entitled to the benefits secured for him by the terms of the Agreement, including those established
implementing it.
We find a practice of calling in a Foreman when three employees were
working at the garage existed and that this practice does not contradict or
Form 1 Award No. 28214
Page 6 Docket No. MW-27839
89-3-87-3-352
conflict with any Agreement Rule. Therefore we will sustain the Claim, but in
doing so we will note we agree with Carrier that the Claim as presented is excessive in that it requ
been due. We believe the proper remedy is to Award Claimant the amount he
would have earned had he been called in on the Claim dates.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
T
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 4th day of December 1989.
CARRIER MEMBERS' DISSENT
TO
AWARD 28214, DOCKET MW-27839
(Referee Cloney)
The lengthy Majority opinion might mislead the reader
into believing that a difficult and complex issue was
involved in the dispute. Not at all. The issue was quite
simple, namely, whether the Carrier had the right to
determine whether it would assign supervision over a motor
car repair force. The decision should have been equally
simple, namely the Carrier had the right to determine
whether it would assign supervision absent an Agreement
which limited that right.
The six page opinion of the Majority comes to the
astounding conclusion that while there is no Agreement
limiting the Carrier's prerogative of deciding whether a
supervisor is required, the alleged existence of a past
practice by the Carrier of assigning a supervisor requires
it to continue to do so. In other words, the Carrier's
exercise of a right of management prerogative has destroyed
the prerogative.
The Majority's treatment of Third Division Award 26438
is worthy of note. That Award involved the same parties
to this dispute, the same Agreement, and the same issue.
The Board concluded:
"This Board has consistently held that unless otherwise
specifically provided in the Agreement, Carrier has the
sole and exclusive right to determine when and under
what circumstances a foreman is assigned to supervise a
group of employes. The burden of proof is on the
Claimant to show that some Rule of the Agreement has
CM's Dissent
Award 28214
Page 2
been violated."
The Majority reveals a total lack of understanding of
Award 26438 by dismissing its relevance on the ground that:
"A careful reading of the Award gives no indication
there was an assertion, much less proof, of a past
practice upon which the Claim was based."
The Majority is correct that the Board in Award 26438 did
not investigate past practice but totally misses the point
of the reason there was no investigation. There was no
inquiry of past practice because, lacking any Agreement
support or, at the least, some ambiguity in the Agreement
which makes past practice significant in interpreting the
ambiguous Agreement, the past practice of the Carrier was
totally irrelevant.
We are confident that the Majority decision will be
given no precedential weight. Indeed, we believe that its
main utility in the future will be that of a prime example
of the term "palpably erroneous.",
M. W. ^i r t
R. . Hicks
M e i
V. Varga
E. Yost ' (~