Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. ?9691
THIRD DIVISION Docket No. MW-28594
91-3-88-3-435
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
(Formerly The Chesapeake and Ohio Railway Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned Welding
Group employes instead of Trackman J. Brasfield to perform trackmen's work on
September 24, October 6, 7 and 9, 1987 [System Files C-TC-4009/12(87-1250) and
C-TC-4020/12(88-31)J.
(2) As a consequence of the aforesaid violations, Mr. J. Brasfield
shall be allowed thirty-two (32) hours of pay at his pro rata trackman's 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.
On each of the four dates of Claim, the Organization alleges the
Carrier used welding employees to perform eight (8) hours of track maintenance
work which did not involve welding. The Organization asserts such work was in
violation of Rules 1 and 2 regarding seniority, Rule 5 regarding the recall of
furloughed employees and Rule 59 regarding the classification of work.
The Carrier maintains it is privileged to use welders and/or welder
helpers to assist trackmen when they are not otherwise occupied in the performance of welding duties
upon Rule 47, the composite service Rule, as well as Rule 59(a), which reads
as follows:
Form 1 Award No. 28691
Page 2 Docket No. MW-28594
91-3-88-3-435
"Proper classification of employees and a
reasonable definition of the work to be done
by each class for which just and reasonable
wages are to be paid is necessary but shall
not unduly impose uneconomical conditions upon
the railway. Classification of employees and
classification of work, as has been established
in the past, is recognized."
This Board has already addressed the issue in this case in Third
Division Award 27979 between these parties. In that dispute, the Board held:
"The issue here centers on whether the welding
forces were substituted for track forces and/or
whether they were supplementing track forces
because they were unable to do their own work
for the relatively short period of 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 work)."
A review of the record in this case fails to support a conclusion
that the Carrier utilized the welding employees as substitutes for track
forces. The Carrier has alleged there was no welding work to be performed,
and the Organization has not disputed this. Further, the Organization offered
no evidence which would lead the Board to conciusde additional trackmen would
have been required had the welders been unavailable. As this Board held in
Third Division Award 27979, the Carrier was not constrained by any Agreement
Rule cited by the Organization from assigning welders, in supplementary manner
only, to assist track forces.
A W A R D
Claim denied. -
NATIONAL RAIyROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 28th day of February 1991.