Farm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28821
THIRD DIVISION Docket No. MW-28771
91-3-89-3-156
The Third-Oivision 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 Carrier violated the Agreement when it assigned Foremen
T. Villiquette and C. Felkey instead of Trackman B. Thompson to clean snow
from switches and apply antifreeze solution at Walbridge, Ohio on February 12,
1988 [System File C-TC-4066/12(.88-470) CON].
(2) As a consequence of the aforesaid violation, Trackman B.
Thompson shall be allowed pay for eight (8) hours at his pro rata rate and
seven (7) hours at his time and one-half rate. In addition, he shall be
allowed one days' credit towards 1988 vacation qualifying time."
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 employee 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 is a companion case to Third Division Award 28820. On February
12, 1988, the Carrier assigned two (2) foremen to clear snow from switches and
to apply antifreeze solution at Walbridge, Ohio. The Organization contends
the Claimant was fully qualified and readily available to perform the work in
question. This Board adopts the findings and reasonings as found in Third
Division Award 28820.
Form 1 Award No. 28821
Page 2 Docket No. MW-28771
91-3-89-3-156
We also point out that the organization also advanced the argument
the parties, by Agreement, agreed to limit the work of foremen within the
track subdepartment to the extent that they would not be utilized to replace
trackmen. The Organization, apparently, refers to a Letter of Interpretation
dated September 9, 1987, which applies to a February 20, 1986, Memorandum of
Agreement which states in relevant part:
"The February 20, 1986 Agreement reads in part, as
follows:
Foremen will participate in the work of the force to
which they are assigned to the extent that this does
not conflict with their foreman duties; however, they
will continue to hdve complete control of their
force.
It is not the intent of the foregoing that the foremen replace trackmen or B&B Mechanics. Th
only assist in unusual situations or sporadically
when needed, it being the intent of the parties that
employees assigned foreman positions will be productive when not otherwise engaged in the performanc
of their foreman's duties."
In this matter, the Organization has presented no evidence that the
foremen involved replaced trackmen. On the contrary, the above quoted language expressly states the
to the extent it does not conflict with their foreman's duties and that they
will have control over their forces. Additionally, the Board finds no basis
to conclude the disputed assignment of February 12, 1988, in any manner conflicted with duties of th
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
000,
Attest:
ancy J. D
rspo'-
Executive Secretary
Dated at Chicago, Illinois, this 25th day of June 1991.
LABOR MEMBER'S DISSENT
RECEIVED
AWARD 28820, DOCKET MW-28770
4~lu 11 1991
AWARD 28821, DOCKET MW-28771
AWARD 28822, DOCKET MW-28772
Each of these dockets involved the Carrier assigning either
blacksmiths, track inspectors or foremen to perform snow cleaning
work on February 6, 7, 11, 12, 13 and 15, 1988 at Walbridge, Ohio.
Walbridge is located southeast of Toledo, Ohio and is approximately
eight (8) miles from the shore of Lake Erie. The average yearly
snow fall for this area is' approximately forty (40) inches. Since
this Carrier has operated through this area for at least one
hundred (100) years, it seems that a defense of snow emergency
lacks credibility. However, the Majority, in its infinite wisdom,
chose to give credibility to Carriers argument and held in Award
28820 that "The Board finds the Carrier established emergency
weather conditions prevailed on February 11, 1988.
***"
Without
conceding an emergency existed for that day, but for the sake of
argument that such was the case, how could the Majority then find
that the alleged emergency continued on February 12, 1988 (Award
28221) or February 13 (Award 28821) or February 7 following the
initial snow fall on February 6 (Award 28822). As Third Division
Award 23861 held:
^*** The Board will take judicial notice that severe
snow storms in this section of the country are not rare.
Because of the necessary time involved in implementing
the assignment mandated by Rule 6 under these circumstances, the Board will grant that the first day
Labor Member's Dissent
Awards 28820, 28821 and 28822
Page Two
"storm would make it practically impossible to assign
Claimant to operate the backhoe. However, absent a
showing by Carrier that it was not possible for Claimant
to travel in a safe and reasonable manner the twenty
miles to Madison, Claimant should have been assigned to
operate the backhoe. No such showing was made, therefore
the Agreement was violated."
These awards are palpably erroneous and I therefore dissent.
Respectfully submitted,
r --~, (~
D artholomay
Labo Member