Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35566
Docket No. MW-32789
01-3-96-3-106
The Third Division consisted of the regular members and in addition Referee
Dana E. Eischen when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and refused to
properly compensate Eastern Lines Class `A' Welders, Western
Lines Class `A' Welders, Western Lines (former Gulf Lines) Class
`A' Welders, and Coast Lines Class `A' Welders at the lead
welder's rate of pay pursuant to Rule 39 commencing January 1,
1995 and continuing (System files 40-39-951/95-11-110, 40-39952/95-11-113, 40-39-953/95-11-114 and 4
(2) As a consequence of the violations referred to in Part (1) above, the
Class `A' Welders on each of the lines listed in Part (1) above shall
now be compensated for the difference in pay between the Class `A'
Welder and lead welder rates commencing January 1, 1995 and
continuing until the violation ceases."
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.
Form 1 Award No. 35566
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This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
On February 23, 1995, the Organization filed four identically worded claims, on
behalf of employees who established and held seniority as Class A Welders and who held
assignments as Class A Welders on each individual welding gang in which two or more
Welders (usually a Class A Welder and one or more Class B Welders) were employed
on the Carrier's Eastern Lines, Western Lines, former Gulf Lines and Coast Lines,
beginning January 1, 1995 and continuing. Following handling to impasse on the
property, the four claims were consolidated on appeal to the Board for final
determination.
These claims posit a contract violation each time, beginning January 1,1995 and
continuing, when the Carrier failed or refused to designate the Claimant(s) as "lead
Welder" and pay him/her the "lead Welder rate," in accordance with Rule 39(c) as
follows:
"RULE 39 - LEAD WORKMEN
39(6) - Welder Gang Foreman. A gang foreman shall be assigned to
supervise welding gangs composed of more than six (6) men and may be
used as workmen.
39(cL, Lead Welder. In welding gangs composed of six (6) men or less, in
which two (2) or more welders are employed, one of the welders shall be
designated as `lead welder,' who will direct the work and make necessary
reports, etc., for which service he will be paid the lead welder's rate."
In late 1994, at the Carrier's initiative, these parties consummated a Letter of
Understanding to allow the Carrier to eliminate the positions of "Welder Helpers," as
part of phasing in its ultimate objective of staffing its welding crews solely with qualified
Welders. Among other things, the parties therein agreed to immediately change the job
titles of the former Group 6, Class 2 Welders and Heat Treaters to "Welders Class A,"
and the job titles of the former Group 6, Class 3 Welder Helpers to "Welders Class B"
Form 1 Award No. 35566
Page 3 Docket No. MW-32789
01-3-96-3-106
and to provide incentives for Class B Welders to become Class A Welders, including a
two-tier wage structure for the Class B Welders, depending on their welding proficiency.
The record shows that those negotiations consisted
of
an exchange
of
proposals
by fax machine, culminating in the acceptance by General Chairman Hemphill
of
the
final language drafted by Labor Relations Director Broxterman, in the Letter
of
Understanding, dated and signed by the negotiators on December 27, 1994, to be
effective January 1, 1995:
"December 27, 1994
11-520
Mr. M. E. Hemphill, General Chairman
Brotherhood
of
Maintenance
of
Way Employes
521 S.E. 10th Street, P.O. Box 746
Newton, Kansas 67114-0746
Dear Sir:
Referring to our discussion in Kansas City on November 21,1994, and our
subsequent discussions regarding the Carrier's intent to man welding
gangs with welders rather than welders and helpers.
As we discussed, it was our intentions to provide all current welder helpers
a genuine opportunity to qualify as welders. Except as set forth herein,
welder Class A) and welder Class B positions are subject to the provisions
of
the rules
of
the current Maintenance
of
Way Agreement.
It was agreed that, effective January 1, 1995, Group 6 will be amended as
follows:
1. All references to welder helpers within the current agreement will
be eliminated. Group 6, Class 3 will be referred to as welder Class
B. All employees holding seniority as welder helper will be placed
on the Welder Class B seniority roster in the order of their current
welder helper seniority dates. Group 6, Class 2 will be referred to
as welder (Class A).
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2. (a). All employees on the Group 6, Class 3 Welder Class B seniority
rosters who are qualified to perform welds and occupy a welder
Class B position will be advanced to a higher rate
of
pay - $14.70
per hour, effective January 1,1995. Those who are not qualified to
perform welds, will remain at the former welder helper rate -
$13.89 per hour.
If
such an employee subsequently becomes
qualified to perform welds, he will be advanced to the higher rate
beginning on the first day
of
the next pay period following the date
they are qualified to perform welds.
(b). All employees holding seniority as welder Class B who do not
have welder's (Class A) seniority but who desire to obtain welder
(Class A) seniority will be given a date
of
December 31,1994, on the
welder's (Class A) seniority roster provided they qualify as a welder
(Class A) within one year from the effective date
of
this agreement.
They will be placed on the bottom
of
the welder (Class A) seniority
roster with a December 31,1994 seniority date and ranked thereon
in the order
of
their welder Class B seniority dates. Employees who
qualify as welder (Class A) after one year will be given a welder
(Class A) seniority date on the date they qualify.
3. (a). All welding gangs, when advertised for bids, will consist
of
at
least one welder (Class A) position and one welder Class B position.
In the event that no bids are received for a welder Class B position,
and it cannot be filled in accordance with the provisions
of
Rule 9
(g), the position will be advertised as a welder (Class A) position.
(b). In gangs where there are two (2) or more welder (Class A)
positions assigned and there is a lesser number
of
welder Class B
positions assigned, a welder Class B having lost his positions
through force reduction or displacement may elect to displace on a
welder (Class A) position providing the position is occupied by an
employee junior in welder Class B seniority. Subsequent to the
displacement, the welder (Class A) position will automatically
become a welder Class B position and the welder (Class A) will have
full displacement rights under the Agreement. The rate
of
pay
of
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01-3-96-3-106
welder Class B position will depend on whether the employee
making the displacement is qualified to weld.
(c). When a welder Class B position is advertised as a temporary
vacancy, the regularly assigned holder of that position will have the
right to return to that position unless he is displaced by a senior
welder Class B in the exercise of seniority.
(d). All welder Class B positions, when advertised for bulletin, will
be advertised with the higher welder Class B rate.
If
an employee
who is not qualified to weld bids on and is assigned to the position,
he will assume the lower rate. The same situation will apply when
such employee displaces an employee who is qualified to weld and
getting the higher rate, he will assume the position at the lower rate.
(e). When a welder (Class A) uses his welder (Class A) seniority to
displace on a welder (Class A) position, he will be paid the welder
(Class A) rate. A welder (Class A) can displace a welder Class B
using his welder's Class B seniority in which event he will be
considered as occupying a welder Class B position and paid the
welder Class B rate (higher rate).
4. All new employees entering service in Group 6 after December 31,
1994, will establish seniority as welder on the appropriate welder
(Class A) seniority roster on the first day their pay starts in Group
6. However, they will not be placed on a welder (Class A) position
until such time as they are deemed qualified. They will be paid
$14.70 per hour until such time as they are considered qualified and
placed on a welder position in the applicable welder (Class A) rate,
without prejudice to any other agreement, rule or practice,
particularly Rule 8
of
the current Agreement, in the event such
employee fails to qualify as a welder within 120 days, he will be
required to exercise seniority in accordance with the applicable
rules
of
the agreement. Such employees will not establish welder
Class B seniority. Through attrition, welder Class B seniority will
be eliminated.
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If the above correctly reflects our understanding, please affix your
signature on the line provided below, returning one signed copy to this
office.
Yours truly,
s/ L. L. Broxterman
Director - Labor Relations
I concur:
s/ M E Hemphill
General Chairman - BMWE
Approved:
s/ P C Wolfersberger
s/ T A Wheeler
Approved:
s/ C F Foose
Vice President" (Emphasis added)
The instant claims arose because, on and after January 1, 1995, on welder gangs
consisting of a Class A Welder and one or more Class B Welders, the Carrier declined
to designate the Class A Welder as a "Lead Welder" and pay him/her the "Lead Welder
rate," as specified in Rule 39(c), supra. In defending its denial of the claims, the Carrier
asserts that such a literal application of the words of Rule 39(c) was never intended by
the Parties when they negotiated the title changes from former Group 6, Class 2 Welders
and Heat Treaters to "Welders Class A" and former Group 6, Class 3 Welder Helpers
to "Welders Class B." According to the Carrier, under the Letter of Understanding, the
word "Welders" in Rule 39(c) means only Class A Welders (former Group 6, Class 2
Welders and Heat Treaters) and has no application whatsoever to Welders Class B
(former Group 6, Class 3 Welder Helpers). In aid of that interpretation of the cited
contract provisions, the Carrier alleges a long-standing "past practice" by which Rule
39(c) was so applied to former Group 6, Class 2 Welders and Heat Treaters as compared
to former Group 6, Class 3 Welder Helpers, prior to January 1, 1995.
In our considered judgement the Carrier's so-called "past practice" defense is a
non se uitur because, by plain language not by "past practice," Rule 39(c) has always
applied to "Welders" but has never applied to "Welder Helpers." Stated another way,
the language of Rule 39(c) is not ambiguous but rather crystal clear in its application to
Form 1 Award No. 35566
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"Welders" without further qualification. Thus, the Carrier's attempt to read into the
word "Welders" in Rule 39(c), after January 1, 1995, a distinction between "Class A
Welders" and "Class B Welders" simply has no support in contract language or past
practice. Nothing in the language
of
Rule 39(c) or in the December 27, 1994 Letter
of
Understanding supports a conclusion that the Parties to the latter document intended
that, for purposes
of
Rule 39(c), Class B Welders would not be counted as "Welders" on
welding gangs composed
of six
men or less, in which two or more Welders are employed,
but rather would be treated as Group 6, Class 3 Welder Helpers.
The revisionist interpretation
of
the plain contract language
of
Rule 39(c), which
the Carrier now seeks in arbitration but did not achieve in negotiations, would be
contradictory to the second sentence
of
the second paragraph
of
the December 27,1994
Letter
of
Understanding: "Except as set forth herein welder (Class Al and welder Class
BBpositions are subject to the provisions
of
the rules
of
the current Maintenance
of
Way
Agreement." Moreover, it is not at all uncommon that subsequently disputed language
is construed against the Party which drafted the language, in this case the Carrier.
Finally, we note that the Carrier's procedural defense on the property that these
claims were fatally nonspecific was not pursued in its Submission to the Board. In any
event, we find that the claims are not deficient under Rule 14-(a)(1). The class to which
the Claimants belong is identified with sufficient particularity that the identity
of
each
individual Claimant entitled to recompense under this Award should be readily
ascertainable by a check
of
personnel and payroll records. The claims are sustained and
the matter is remanded to the property for resolution
of
the remedial damages issue,
with a retention
of
jurisdiction by the Board for the sole purpose
of
resolving any
disputes that may arise between the Parties regarding the meaning, application or
implementation
of
this Award, including the calculation and payment
of
the awarded
remedial damages.
AWARD
Claim sustained in accordance with the Findings.
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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 24th day of July, 2001.