Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33159
Docket No. SG-34248
99-3-97-3-819
The Third Division consisted of the regular members and in addition Referee
James E. Mason when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Wheeling & Lake Erie Railway Company
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Wheeling & Lake Erie Railway Company
(W&LE):
Claim on behalf of J.J. Stewart, J.A. Gale, R.D. Rouse, T.E.
Thompson, P.E. Neal, L.R. Thompson, J.L. Karlosky, E.L. Lamb, and
R.P. Southwood for payment of 16 hours each at the time and one-half
rate, account Carrier violated the current Signalmen's Agreement,
particularly Rule 19, when it used junior employees instead of the
Claimants for an overtime assignment at Rock, Pennsylvania, on April 12,
1996, and deprived the Claimants of the opportunity to perform this work.
General Chairman's File No. 960608A. BRS File Case No. 10423W&LE(M)."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees 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.
Form 1 Award No. 33159
Page 2 Docket No. SG-34248
99-3-97-3-819
Parties to said dispute were given due notice
of
hearing thereon.
The record in this case reveals that on April 11, 1996, a derailment occurred on
Carrier's property at Rook, Pennsylvania. To perform the immediate work necessary
to clear the derailment, Carrier used not only the Mingo Section Gang which normally
performs maintenance work in the vicinity
of
the derailment, but also the members
of
a Surfacing Gang along with members
of
a Production Tie and Extra Gang all
of
whom
were then located in the proximate vicinity
of
the derailment. After affecting an initial
clearing
of
the derailment and after having been relieved for rest on April 11, 1996, all
of
these above mentioned forces were subsequently ordered by Carrier to again report
for duty on April 12, 1996, their assigned rest day, to finalize the needed repair work
after the derailment had been cleared.
The Claimants in this case were assigned to a Production Tie and Extra Gang
which at the time was working in the vicinity
of
Brewster, Ohio, approximately 100
miles from Rook, Pennsylvania. April 12, 1996, was also an assigned rest day for the
Claimants.
The penalty claim which was initiated on behalf of the named Claimants alleged
a violation
of
Agreement Rule 19 because
of
the use of employees who were junior in
service to the Claimants to perform the work in question on the assigned rest day - April
12, 1996. Throughout the handing of the dispute on the property, the sole Agreement
Rule which was cited and argued by both parties was Rule 19.
"Rule 19 - SENIORITY
A. Seniority shall consist
of
rights based upon relative length
of
service
of
employees as hereinafter provided and may be exercised only
when vacancies occur, new positions are created or in reduction in
force. Seniority shall be confined to the Seniority Districts as
described in this Agreement.
B. Seniority begins at the time an employee's pay starts in the seniority
class and district in which employed, except that an employee
performing temporary service in a higher class or temporary
service in another seniority district will not establish seniority in
that class or district.
Form 1 Award No. 33159
Page 3 Docket No. SG-34248
99-3-97-3-819
Two or more employees entering the service in the same class on the
same date will be shown on the roster on the basis of the date and
time of pre-employment drug screen.
Note: The term `temporary service in a higher class' as herein
used means service which is performed on a position which is not
bulletined; or service that is performed on a bulletined position
pending assignment thereto by bulletin, provided, however, that if
an employee performs service on a position that is under bulletin,
and is awarded such position, his seniority date in the higher class
will date from the date of the commencement of his last continuous
service on such position.
C. Employees promoted from one seniority class to another seniority
class will retain and accumulate seniority in all classes in which they
have established seniority.
D. An employee who is hired or promoted to the following seniority
class(es) will establish and accumulate seniority in the
corresponding listed classes.
F. (sic) Seniority classes will be as follows:
TRACK
1. General Foreman
2. Foreman
3. Track Inspector
4. Assistant Foreman
5. Welder
6. Chief Mechanic
7. Mechanic (equipment)
8. Operator (Class A off track)
9. Operator (Class A on track)
10. Welder Helper
11. Operator (Class B)
Form I Award No. 33159
Page 4 Docket No. SG-34248
99-3-97-3-819
12. Operator (Class C)
13.Track Laborer
BRIDGE & BUILDING
1. General Foreman
2. B&B Foreman
3. B&B Assistant Foreman
4. Bridge Inspector
5. B&B Mechanic/Journeyman
6. B&B Helper"
Before the Board begins its determination
of
the claim as presented, it is
necessary to address an ancillary issue. There is uncontroverted evidence in the case
record to indicate that named Claimant R. P. Southwood voluntarily resigned from
Carrier's service effective July 11, 1997, which preceded the listing
of
this dispute with
the Board. His resignation notice specifically released the Carrier "from any and all
claims or liability out
of
my employment or resignation from employment with the
Company." Therefore, Mr. Southwood is not a proper Claimant in this dispute and his
name is dropped.
During the on-property discussion
of
this dispute, Carrier stated that "a close
check
of
the seniority roster will show that some
of
the Claimants are really junior to the
men that (sic) actually performed the work." However, nowhere in the record are these
alluded to employees identified. Additionally, during the on-property handling
of
the
claim, Carrier stated, without contradiction by the Organization, that two
of
the named
Claimants - J. L. Karlosky and Edwin L. Lamb - actually worked and were properly
paid for the work they performed on April 12, 1996.
The Organization's primary argument in this dispute centers on the alleged use
of
"junior" employees to perform overtime work to the exclusion
of
"senior" employees.
It insists that the principles
of
seniority are paramount in the assignment
of
overtime
work and that, in this instance, the overtime work was planned on April 11, 1996, and
the Claimants should have been offered the opportunity to perform such overtime work.
It argued, and Carrier did not refute, that no attempt was made to contact the
Claimants for this overtime work.
The Carrier, in its Ex-Parte Submission to the Board, candidly stated as follows:
Form 1 Award No. 33159
Page 5 Docket No. SG-34248
99-3-97-3-819
". . . it was necessary for the Carrier to utilize the services of numerous
maintenance of way employees who were already working in proximity to
the derailment. Because of their proximity to the derailment site, the
Carrier utilized not only the Mingo section gang, which normally
performed the daily maintenance work at that location, it also utilized the
members of another of its Production Tie and Extra Gangs (which was
manned by the `junior' employees) as well as members of one of its
Surfacing Gangs (which was also manned by a `junior' employee) because
such gangs were already working in the vicinity. As a result of their
proximity to the derailment site, the `junior' employees performed service
thereat on April 11, 1996 (date of derailment), and were held over by the
Carrier to continue their work at such site on April 12, 1996."
In addition, Carrierfor the first time in their ex-parte Submission cited and relied
heavily on the provisions of Rule 14 which reads as follows:
"
RULE 14 - SUBJECT TO CALL AND CALLS
A. Except when employees are notified or called for overtime service,
they will be free after their assigned tour of duty.
Employees will, if qualified and available, be given preference for
overtime work, including calls, on work ordinarily and customarily
performed by them during the course of their work week or day in
the order of their seniority. (In emergencies consideration will be
given to employees that can respond promptly.)
Note: An employee will not be subject to call during vacation
period which period shall be considered as beginning with the
starting time of his assignment on the first day of his assigned
vacation period and end at the starting time of his assignment on the
first work day following vacation."
Carrier's entire citation of and reliance on Rule 14 comes too late for
consideration by the Board. It is too well settled to require citation of authority that
Rules and arguments which are not cited and/or joined during the on-property handing
of a dispute may not be advanced for the first time before the Board.
Form 1 Award No. 33159
Page 6 Docket No. SG-34248
99-3-97-3-819
This Board has regularly held that seniority is the keystone of a collectively
bargained agreement. Third Division Award 5346 said:
".
. . seniority is the essence of the collective agreement and that it applies
in determining preference to overtime work in a given class."
Preference to overtime is one of the benefits of seniority. 1n this case, it is
acknowledged that "junior" employees were used on April 12, 1996. In this case, there
is no question but that there was an exception to the use of the senior employees on April
11, 1996, because of the derailment and immediate need to clear the derailment.
However, on April 12, 1996, after the immediate need had abated, the senior employees
should have been given the opportunity to perform the overtime work.
Therefore, it is the conclusion of the Board that Claimants Southwood, Karlosky
and Lamb are, for reasons explained earlier in this Award, excluded from the settlement
of this claim. The remaining six Claimants, if they are, in fact, senior to the "junior"
employees who Carrier acknowledges were used on April 12, 1996, are entitled to
receive the same number of hours as were worked by the "junior" employees.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 25th day of March 1999.