Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28500
THIRD DIVISION Docket No. MW-28365
90-3-88-3-145
The Third Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Terminal Railroad Association of St. Louis
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned Track Machine
Operator 0. Rodriquez instead of Truck Operator T. Knopf to operate a truck
during overtime service on Saturday, January 10, 1987 in Madison, Illinois
(System File 1987-3/013-293-19).
(2) As a consequence of the aforesaid violation, Truck Operator T.
Knopf shall be allowed nine and one-half (9.5) hours of pay at his time and
one-half rate."
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 basic facts of this case are set forth as follows: On January
10, 1987, Carrier called out several Track Department employees for snow
removal work at Madison, Illinois. Among those called was a Track Machine
Operator, who was qualified as a truck operator and carried on the Group 1(c)
seniority roster. He transported employees to and from various work locations. It was the Organizati
31(f) of the controlling agreement, since the employee called was not a regularly assigned motor tru
Third Division Award 3822). It did not dispute Carrier's contention that the
track machine operator was a qualified truck operator and held greater seniority on the Group 1(c) r
operator and motor truck positions were separately bulletined and assigned in
accordance with the applicable provisions of the Agreement. It cited several
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Third Division Awards to substantiate its position that Rule 31(f) was the
operative rule. (See Third Division Awards 8414, 9460, 13824, 14029, 16253,
et al.)
The Carrier contended that the employee called was a qualified truck
operator and senior to Claimant on the Group 1(c) seniority roster. Specifically, it pointed out tha
whether the employee was regular or extra. It noted that the work for which
the employees were called was not a regular bulletined system gang assignment,
but strictly extra work necessitated by inclement weather. It also asserted
that Rule 31 (Overtime) mandated that the senior available employee will be
given preference in performing overtime work on a call-basis. It cited
Third Division Awards 13230, 22294, 22761 and 23894 as controlling.
In considering this case we concur with the Organization's position.
The work performed by the track machine operator on January 10, 1987, was work
that would have normally been performed by Claimant on his regular work days.
In other words, had there been a requirement to move track forces for snow
removal purposes on one of Claimant's normative work days, he would have been
assigned the work, i.e., transporting via truck the M&W snow removal crew.
Unlike Third Division Award 13230 cited by Carrier, where an Electrician was
used to transport electrical ladders and materials, the work performed herein
was completely Maintenance of Way work. Further unlike Third Division Award
22294, where the Board held that the record didn't support the Organization's
contention that the Claimant in that dispute was specifically bulletined to
operate the Speed Swing machine, the issue herein does not relate to equipment
exclusivity, but to the type of work performed. There was also no assertion
by Carrier as to how the overtime rules applied. In Third Division Award
22761 the issue is distinguishable and relates to whether Carrier may assign
Foremen to operate company owned or leased trucks. To be sure, Carrier is
correct that it is compelled to comply with Rule 31(g) when making overtime
assignments, but it cannot disregard the last sentence of said provision which
reads, "This is not to interfere with work on unassigned days covered by Paragraph (F) of this Rule.
"Where work is required by the Carrier to be performed on a day which is not a part of any assig
unassigned employee who will otherwise not have
forty hours of work that week; in all other cases
by the regular employee."
Accordingly, since the Board has established that Claimant would have performed such work on his
Third Division Award 13824 is pertinent and controlling. It is undisputed
that Claimant was the regular employee truck operator as opposed to the Machine Track Operator, the
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would have normally performed on his regular work days and the work was not
assigned to an eligible extra or unassigned employee. Under such circumstances, Rule 31 (f) obligate
Importantly, the issue herein is not equipment exclusivity, but rather _work
that accrues to a specific position.
A W A R D
Claim Sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 7th day of August 1990.