Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37656
Docket No. MW-37585
05-3-02-3-692

The Third Division consisted of the regular members and in addition Referee Margo R. Newman when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM:





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. 37656
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This claim protests the assignment of junior Maintenance Gang Substation Electricians to perform weekend overtime work on a construction project rather than the Claimant, a member of Construction Gang D-251. It involves the application of Rule 55, Preference for Overtime Work, which provides, in pertinent part:




As it did in Third Division Award 37655, the Organization contends that the Claimant, as a Substation Construction Electrician, ordinarily and customarlly installs air brake switches and was available and qualified on the claim dates, and that the Carrier's assignment of planned weekend overtime doing such construction work to Morris and Dickens, members of a maintenance gang, violates Rule 55. It notes that economy is not a valid reason to violate seniority, citing Third Division Awards 21609 and 14591; First Division Award 24883. Further, the Organization asserts that Dickens was not even assigned to Maintenance Gang J-103 by bulletin when he was afforded the overtime. The Organization seeks overtime premium pay to compensate for this violation, citing Third Division Awards 26508, 26690, 30448, 30586 and 32371 in support of the appropriateness of this remedy on the property. It relies on Third Division Awards 35642, 35863, 36045, 36049, 36233, 36239, 37068, 37094 and 37146 in support of its contention that Rule 55 has been violated in this case.


The Carrier argues that the Claimant and his construction gang were not entitled to be called for this overtime assignment because they were assigned to perform electrical work on the 30th Street Garage Construction Project when the materials for the air brake switch renewal project arrived. It asserts that because the work had to be completed within the fiscal year in which it was budgeted (ending September 30, 2001) the project was assigned to Maintenance Gang J-103, which performed layout and preparation work for it during their regular tour of duty and the actual installation process on overtime during the weekends when power could be interrupted to facilitate the work. The Carrier contends that the

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disputed September 22 and 23 overtime work was a continuation of the regular assignment of Maintenance! Gang J-103, and that Rule 55 gave Morris and Dickens preference to the overtime involved in that assignment. The Carrier notes that there is no Rule prohibiting it from keeping Dickens with his maintenance gang pending his award to another assignment after passing his electrician certification test. Finally, the Carrier argues that the issue of the appropriate measure of compensation for a missed overtime assignment on this property has been held to be the pro rata rate for work: not performed, and that the Organization's requested remedy is excessive. See Third Division Awards 35863, 30686 and 31129.


A careful review of the record convinces the Board that this case is substantially identical to that decided in Award 37655, in which we found that the Organization failed to sustain its burden of proving a violation of the Claimant's seniority preference for overtime under Rule 55(a). The parties' arguments are the same. The conclusion supported by the evidence is that the disputed overtime assignment was a continuation of the work ordinarily and customarily performed by Maintenance Gang J-103 on the switch renewal project and that, under Rule 55(a) they were entitled to preference for the overtime associated with that project. For all of the reasons set forth by the Board in Award 37655, we must deny the claim.








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 7th day of December 2005.