Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35075
Docket No. SG-34446
00-3-98-3-69
The Third Division consisted of the regular members and in addition Referee
Donald W. Cohen when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Long Island Rail Road Company
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signal men, on the Long Island Rail Road:
Claim on behalf of L. J. Delia for payment of 36 hours at the time and
one-half rate and 13 hours at the double time rate, R. A. Waidler for
payment of 12 hours at the time and one-half rate, S. F. Gagliano for
payment of 28 hours at the time and one-half rate, E. C. Wylie for
payment of 20 hours at the time and one-half rate and 30 hours at the
double time rate, A.G. Meyer for payment of 20 hours at the time and
one-half rate and 30 hours at the double time rate, J. C. D'Arles for
payment of 32 hours at the time and one-half rate and 28.5 hours at the
double time rate, A. W. Klein for payment of 12 hours at the time and
one-half rate and R. E. Poor for payment of 32 hours at the time and onehalf rate and 28.5 hours at
the current Signalmen's Agreement, particularly Rule 40, when it used
other employees instead of the Claimant for overtime assignments from
Oct. 28 to November 16,1996. Carriers file No. SG-27-96.BRS File Case
No. 10566-LI."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 35075
Page 2 Docket No. SG-34446
00-3-98-3-69
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.
Parties to said dispute were given due notice of hearing thereon.
At issue in this case is the application of Rule 40 (g) relating to overtime, which
provides in part:
"(g) When it becomes necessary to assign an employee to an overtime
assignment, such employee shall he selected based on the following
considerations:
(1) Incumbent of the position for which the overtime is
required.
(2) Senior qualified available employee working in the
class of the overtime assignment as set out in Rule 12
at the section, subdivision, or gang. In the event no
such employee is available to cover the overtime
assignment, employees in an adjacent section,
subdivision, or gang will then be considered on the
same basis."
The claim flows from the action of the Carrier in utilizing two BRS employees
assigned to the Construction section, headquartered at Mineola, New York, to work
in the Maintenance section headquartered in Ronkonkama, New York. When
overtime arose on the job it was assigned to these employees. The Organization
contends that this was a violation of past practice and that the two employees could not
be considered incumbents in the job. The Organization argues that under the Rule,
the Carrier had to first attempt to fill the positions with an employee from the adjacent
section, subdivision, or gang.
Form 1 Award No. 35075
Page 3 Docket No. SG-34446
00-3-98-3-69
The Carrier contends that it has long been the practice to utilize both
Maintenance and Construction employees on the same gang. It contends that the
Organization failed to cite any contractual Agreement as to why Construction section
employees could not be temporarily transferred to a Maintenance section position,
pointing out that Signal employees of construction gangs have been assigned to
Maintenance Gangs, and vice versa, on the property in the past without complaint
from the Organization.
The Carrier points out the acknowledged burden upon the Organization to
sustain its position and emphasizes that the Organization has not contradicted the
Carrier's position that it has a freehand in commingling employees from both
classifications. The logical progression from this right is a determination that the
Construction employees, having been assigned to the job for an extended period of
time, have thereupon become the incumbents.
The Organization also claims that the named Claimants could have performed
the overtime work. In response the Carrier demonstrated that the Claimants were
working full-time and in many instances, overtime during the period in question. The
Carrier also states that it did not anticipate the overtime in advance. The Organization
also argues that the use of the word " gang" relates solely to Maintenance employees
and that such reference precludes utilization of Construction employees. There is
nothing in the record however to sustain its position.
The Organization failed to carry its burden of establishing exclusive right to the
job, and the fact that the construction employees were utilized over an extended period
of time confirms their position as incumbents. The claim is denied.
AWARD
Claim denied.
Form 1 Award No. 35075
Page 4 Docket No. SG-34446
00-3-98-3-69
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 15th day of November, 2000.
Labor Members Dissent
To
Docket No. SG-34446
Third Division Award 35075
Referee Donald W. Cohen
The majority erred in the factual basis in denying this dispute. As noted in Third Division
Award 35075 it incorrectly held that "The carrier contends that it has long been the
practice to utilize both Maintenance and Construction employees, on the same gang .
... Signal employees of construction gangs have been assigned to Maintenance Gangs,
and vice versa, on the property in the past without complaint from the Organization."
It must be noted Carrier's affirmative defense was not based on any evidence or support.
The record of handling on the property indicates that Carrier never made this argument
on the property. It was not until it filed its Submission to the Board that this new
contention arose. The actual record does indicate that the Organization provided an unrebutted inter
follows:
" When a Rule is written and agreed to between two parties there also
has to be an interpretation of the Rule if there is going to be an
understanding on the Rules implementation. The understanding on
this particular Rule has been in place for the past 20 years. The
reasoning behind the interpretation was logical to both parties until
now. When the authors of the Rule listed in order `section,
subdivision or gang' the intent and interpretation was to separate and
keep distinct work in the maintenance area and the gang. In
maintenance there are sections and subdivisions. These defined areas
do not exist in the construction gangs. When a position is advertised
in the maintenance area it is defined by section or subdivision. When
a position is advertised in the gang it is listed as entire LIRR.
Considering this when it is necessary to assign overtime in the
maintenance area within a particular subdivision the Rule states
section man to be asked first and then men who are working in the
subdivision second. If there is no one available at this point the
carrier would not have gone to the gang but to the next sentence of the
Rule and went to the adjacent section or subdivision.
When overtime is available in the gang the Carrier and the
Organization have agreed that if there was not sufficient members in
said gang for the assignment, they would not have to go to the
employees in the maintenance area where the work was being
performed, but to the other construction gangs."
It is the Organization's position that the Organization's interpretation of Rule 40 (G) was
the only interpretation properly before the Board. Therefore, Third Division Award
35075 should be considered palpably erroneous.
Therefore, I must dissent.
v
C.A. McGraw, Labor Member
Date: December 7. 2000