"Claims on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the CSX Transportation Company (B&O):
A. Claim on behalf of W.E. Baudendistel and T.J. Rich for payment of an amount equal to the hours worked by construction forces from July 18 to July 23, 1995, from Mile Post 21 to Mile Post 25 on the main line and from Mile Post 0 to Mile Post 11 on the Middletown Subdivision, account Carrier violated the current Signalmen's Agreement, particularly Agreement No. 15-18-94, when it used construction forces to perform maintenance work on the signal system, and deprived the Claimants of the opportunity to perform this work. Carrier's File No. 15(95-294). BRS File Case No. 10010-B&O."
"B. Claim on behalf of W.E. Baudendistel and T.J. Rich for payment of an amount equal to the hours worked by construction forces from June 22 to June 29, 1995, and on July 4, 1995, from Mile Post 21 to Mile Post 25 on the main line and from Mile Post 0 to Mile Post 11 on the Middletown Subdivision, account Carrier violated the current Signalmen's Agreement, particularly Agreement No. 15-18-94, when it used construction forces to perform maintenance work on the signal system, and deprived the Claimants of the opportunity to perform this work. Carrier's File No. 15(95-290). BRS File Case No. 10014-B&O."
"C. Claim on behalf of B.K. Caldwell for payment of 13 hours at the time and one-half rate, account Carrier violated the current Signalmen's Form 1 Page 2
Agreement, particularly Agreement No. 15-18-94, when it used a construction force employee to perform maintenance work on the signal system on the Keystone Subdivision on August 19, 1995, and deprived the Claimant of the opportunity to perform this work. Carrier's File No. 15(95-292). BRS File Case No. 10012-B&O."
"D. Claim on behalf of J. Dudai, R.B. Dean, J.E. Thompson, D.L. Holt, E.J. Bickar, E.A. Herdt, T.J. Branowitzer, D.S. Hoey, D.E. Musser, J.D. Fisher, J.A. Moretti, R.G. Boughter, and T.F. Sandefur for payment of a total of 317.5 hours at the straight time rate and 155 hours at the time and one-half rate, account Carrier violated the current Signalmen's Agreement, particularly Agreement No. 15-18-94, when it used construction forces to perform maintenance work on the signal system on the Monongahela Subdivision from June 26 to July 21,1995, and deprived the Claimants of the opportunity to perform this work. Carrier's File No. 15(95-293). BRS File Case No. 10011-B&O."
"E. Claim on behalf of D.W. Caldwell, S.R. Brooks, D.H. Kuhns, C.W. Swearman, J. Zurick Jr., R.L. Daniels, L.R. Leister, R.D. Hall, B.K. Caldwell, W.R. Dellinger, A.P. Gall, R.C. Strickler, W.B. McCune, and R.K. Romesburg for payment of an amount equal to the total hours worked by construction forces on the Pittsburgh East End Territory, from July 24 to August 25, 1995, account Carrier violated the current Signalmen's Agreement, particularly Agreement No. 15-18-94, when it used construction forces to perform maintenance work on the signal system, and deprived the Claimants of the opportunity to perform this work. Carrier's File No. 15(95-289). BRS File Case No. 10015-B&O."
In each of the claims involved in this case, a System Signal Construction Gang worked with a CSXT system Tie and Surfacing (T&S) Gang, replacing signal wires and rail connectors that were removed or damaged by the T&S Gang during the tie replacement project. The Claimants are all BRS-represented employees regularly assigned to Division Signal Maintenance Gang or District Signal Gang positions, who claim that the work of replacing bond strand and rail connectors ("STN or chicken head") "is and always has been `maintenance work"' and is not "construction work," as that latter term is defined in Agreement No. 15-18-94. The Carrier denied the claims on several grounds, but primarily asserted that when such bond strand and rail connector work is done as part of a major system reconstruction and renovation, it is no violation of Agreement No. 15-18-94, Side Letter No. 2 to the 1994 Agreement or any other contractual undertaking with the Organization for the Carrier to utilize System Signal Construction Gang employees to do that work.
The Organization's reliance upon Side Letter No. 2 to the 1994 Agreement to support all five claims is misplaced. The record establishes that none of the Claimants in the five separate claims was furloughed and, moreover, no Signalmen were furloughed on the "B&O" territory during the months of June, July and August 1995. Each Claimant worked full time on each claim date and indeed, two of the Claimants in whose territory the track renovation work was performed worked alongside the T&S and System Construction Gangs performing the disputed work.
Nor does the language of Agreement No. 15-18-94 provide contractual support for these claims. To the contrary, the following definition of construction work in that Agreement expressly recognizes a distinction between "the major revision of existing systems" and "maintaining existing equipment or systems:"
preference, on the additional and alternative ground that Maintainer Kuhn's territory, not Claimant Caldwell's territory, was where the work was performed on August 19, 1995; thus Caldwell had no entitlement to the overtime under Rule 14.
Labors Dissenting Opinion
Third Division Award 33152
Docket No. SG - 33399
The face of record indicate that the Carrier assigned a System Signal Construction Gang to work with CSXT system Tie and Surfacing (T&S) Gang, replacing signal wires and rail connectors that were d the tie replacement project. The record of handling reveals that the basic thrust of the Organizatio Side Letter No. 2, which provides a definition of "Construction Work." As denoted in Award 33152, th and Side Letter No. 2."
It must be noted that a contrasting decision was rendered in Third Division Award 32802, wherein the Board held as follows:
"Contrary to argument of the Carrier, we find that the Organization identified Agreement No. 1518-94 replacing ties and surfacing track. This is so for the reason that the definition of construction wo in Agreement No. 15-18-94, supra, is clear and unambiguous in stating that construction work does no
We also conclude that the work of replacing track wires and connector damaged by track forces is maintenance work. There is no difference between replacing damaged track wire and connectors than re
It obvious that Third Division Award 32802 and 33152 arc in conflict with each other. Upon review of entire record in each Case, it is noted that there exists an important contention that was raised by and addressed in Third Division Award 32802, which was inadvertently missing in Third Division Award As noted in Award 32802 the Board addressed this important aspect, wherein, it held, in pertinent pa
"We also note that on two different occasion during the on-property handling, the Organization asser Search of the record before the Board doe not reveal that Carrier took issue with the statements or them during the on-property handling or in its Submission to the Board. This in itself strengthens t that the work involved is properly construed to be maintenance work."
The Organization does not necessarily take exception to the findings of Third Division Award 33152 b on the fact that the Board was not privileged with all of the pertinent facts that were addressed in Award 32802. The Board has consistently and correctly held that the burden of proof rests with the party initiating the dispute. Obviously, the failure of the Board m address the historical practice that was addressed in award 32802 rests solely with the Organization's failure to adequately present that important contention.
The consequence of the Organization's oversight renders Third Division Award 33152 incomplete in det between maintenance work and construction work.