Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35963
Docket No. MW-33307
02-3-96-3-805
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:
(Burlington Northern Santa Fe (former Burlington
( Northern Railroad 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
allow Mr. M. A. Onstot to displace junior employe A. J. Stangland
on a head welder position on June 14,1993 and continuing (System
File C-93-D080-2/MWA 93-11-IIA BNR).
(2) As a consequence of the aforesaid violation, the Claimant shall
". . . be paid any difference in pay from that of a Head Welder and
positions the Claimant has been forced to work from June 14, 1993
and continuing until such time as this violation ceases and that he
be given the appropriate Head Welder's seniority date he would
have received had this violation not occurred. Finally, I request the
Claimant be paid all overtime worked by the junior employee on the
above referred to position from June 14, 1993 and to continue until
he is allowed to displace onto same in accordance with the
Agreement."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 35963
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02-3-96-3-805
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.
Section 11,
of
the findings and recommendations
of
PEB 219, imposed by
Congress in Public Law 102-29 on April 17,1991, allows the Carriers, through a process
of
expedited negotiations with the Organization culminating in compulsory arbitration,
to establish system and regional gangs to operate over specified territory
of
the Carrier
to perform work that is programmed during any work season for more than one
seniority district, a.k&. "Production Gangs." This case has its genesis in a Notice for
the establishment
of
Production Gangs for the 1992 work season, served on the
Organization by the Carrier on October 10, 1991, pursuant to Article
XIV of
the July
29, 1991 "Imposed Agreement."
Among the "Other Conditions" the Carrier proposed in its October 10, 1991
Notice were the following:
"Such employees will not be subject to displacement during the work
season by senior employees . . .
r
Employees assigned to regional or system-wide production gangs . . . will
not be subject to displacement during the work season by senior
employees ... ."
The Organization subsequently challenged the entire October 10,1991 Notice in
PEB 219 Section 11 arbitration, which resulted in an Opinion and Award, by Arbitrator
Joseph A. Sickles. Although somewhat modified by the "Sickles Award," the pertinent
part
of
Section 3(a)
of
the Terms and Conditions applicable to System-Wide and
Regional Production Gangs, reads as follow:
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02-3-96-3-805
"
Employees assigned to regional or system-wide production gangs,
including recalled furloughed employees and new hires, will not be subject
to displacement during the work season by senior employees outside of
their own gang, unless the employe seeking to exercise displacement rights
would otherwise be forced into a status of collecting supplemental
unemployment benefits under the Work Force Stabilization provisions of
PEB 219 . . . ." (Emphasis added)
Claimant M. A. Onstot, with established seniority in the Welding Subdepartment,
was off work due to a personal injury from December 18, 1992 through June 13, 1993.
During his absence, a Head Welder
position, i.e., Job No. 5015 on Welding Crew
RW-04, (one of the Production Gangs established pursuant to Carrier's October 10,
1991 Notice and the Sickles Award) was advertised and awarded in Bulletin PEB-01A
to A. J. Stangland, an employee junior to the Claimant in Welding Subdepartment
classification seniority. On June 14, 1993, the first day after being released to return
to work, the Claimant advised the Call Desk in Denver, Colorado, of his desire to return
to work. At that time, the Claimant attempted to displace junior employee Stangland
from the Head Welder job on Gang RW-04, but the Carrier would not allow him to
displace the junior employee on the Production Gang, citing Section 3 (a), supra.
The Claimant eventually displaced to a different position and the Organization
promptly filed the present claim, alleging a violation of his Rule 2 seniority rights, citing
Schedule Agreement Rule 21
Bulletin Procedure, which reads in pertinent part as
follows:
"F. Bids will not be accepted from an employe while on vacation, sick
leave, or other authorized leave for jobs that are bulletined and closed
during such absence. Such an employe will be permitted to displace a
junior employe from an assignment secured by bulletin that was posted
and closed during the absence of the senior employe, provided he does so
within five (5) calendar days upon reporting back for service."
The claim was denied at all levels of handling and was appealed to the Board for
determination.
At the outset, we are not persuaded by the Carrier's argument that the Board
lacks jurisdiction to consider this dispute and that this matter is properly referable to
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the Contract Interpretation Committee ("CIC") established under Article XVIII of the
Imposed Agreement of April 17, 1991. This dispute concerns the interpretation and
application of provisions in the BNBMWE Schedule Agreement and the Terms and
Conditions Applicable to System-Wide and Regional Production Gangs imposed by the
Sickles Award through the 1993 season. The latter essentially comprised a BNBMWE
local Agreement, over which the CIC previously recognized that it has no jurisdiction.
See CIC Decision No. 25.
The fact pattern presented in this case raises an irreconcilable conflict between
the clear and unambiguous language of the second sentence of Rule 21.F of the Schedule
Agreement and the first sentence of Section 3(a) of the Terms and Conditions Applicable
to System-Wide and Regional Production Gangs. The Organization forcefully and
persuasively argued that it is inequitable and anomalous that Section 3 (a) leaves intact
the first sentence of Rule 21Y, which is detrimental to an employee in the Claimant's
situation, while trumping the second sentence, which is beneficial to him.
Notwithstanding that the equities might well favor the Claimant and the Organization
in this particular case, no other result is possible. The contract language of Section 3(a)
must prevail under the preemptive language of the Sickles Award and the single
exception to the limitation of Rule 21.F displacement rights contained in Section 3(a) was
not applicable in the factual situation presented in this record.
AWARD
Claim denied.
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 8th day of March, 2002.