Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37882
Docket No. SG-37797
06-3-03-3-156
The Third Division consisted of the regular members and in addition Referee
Marty E. Zusman when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Seaboard
( Coast Line Railroad Company)
STATEMENT OF CLAIM:
"Claim on behalf of F. D. McCube, for 66 hours and 30 minutes at
his time and one-half rate of pay and D. D. Hogarth for 59 hours at
his time and one-half rate of pay account Carrier violated the
current Signalmen's Agreement, particularly Rule 17, when it used
employees junior to the Claimants for overtime service on their
assigned territories and denied the Claimants the opportunity to
perform this work during the months of January, February and
March of 2002. Carrier's File No. 15(02-0072). General Chairman's
File No. SCL-04-30-02A. BRS File Case No. 12580-SCL:'
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.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 37882
Page 2 Docket No. SG-37797
06-3-03-3-156
Both parties agree on the facts. In January, February, and March 2002, the
Claimants were assigned Signal Maintainers responsible for their territory. The
Carrier utilized a System Signal Construction Team for work on the Claimants'
assigned territory. The project on the territory involved "a timbering gang
replacing ties and a curve patch team replacing rail" followed by the System Signal
Construction Team repairing crossings and putting them back into service. The
employees of the System Signal Construction Team were junior to the Claimants
and were used to perform work. The Claimants were informed that they might be
used if needed on the project. During the three months, they were used on their
regular assignments and not called for overtime to repair the crossings and put
them back in service.
The Organization alleges violation of Rule 17 of the Agreement. It further
asserts that the utilization of junior employees to perform overtime in assisting the
Claimants on their territory with their work clearly violates the Claimants' rights.
Rule 17 states in pertinent, part:
".
. . Unless registered absent, as above, the regular assignees, or
employees tilling such positions, who can be called by telephone or
reside within calling distance and calling facilities are available, will
be called first for trouble on the assigned section or territory."
The Claimants were not called for trouble on their assigned section or
territory and the overtime was performed by employees of the same class, but junior
to the Claimants.
The Carrier denies that the Claimants were entitled to the work, because the
work was construction work. The Carrier further argues that it did not violate Rule
17 because "there was no trouble involved but merely the protecting, and testing of
signal circuits during and after the accomplishment of the planned rail work."
The Board reviewed the record and the Awards cited by the parties. Rule 17
refers to a trouble call. There was no record of trouble on the assigned territory.
There was no record of a call made to anyone junior to the Claimants. This was
clearly planned rail work, following a timbering gang and curve patch team
working across both Claimants' territories. It is clearly construction and not a
Form 1 Award No. 37882
Page 3 Docket No. SG-37797
06-3-03-3-156
simple "signal trouble" for which the Claimants should have been called under Rule
17 (Third Division Award 27574; Public Law Board No. 4433, Award 45). The
claim must be denied.
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 1st day of August 2006.
Labor Members Dissent
Third Division Award 37882
Docket No. SG - 37797
Referee: Marty E. Zusman
As noted in the Award the Majority started out on the right path by declaring that "Both
parties agree on the facts." However, thereafter the Majority stumbled onto its own path
that has led to a destination inconsistent with the factual record.
At the onset it must be noted that the parties - on the property - discussed their respective
positions regarding the difference between construction verses maintenance. The
Majority for whatever reason only addressed Carrier's contentions and ignored any
position raised by the Organization. The fact is that the SCL Agreement does not make a
distinction between construction and maintenance work.
Notwithstanding the foregoing, the Organization during the on-the-property handling
noted that the controlling issue involved the principle of seniority rights. However, the
Majority overlooked this critical subject matter, and also overlooked the fact that the
Carrier never once addressed the Organization's contentions.
During the handling of this case on the property the Organization expressed the following
unrefutted remarks:
"Our second contention is based on seniority. Mr. JA Williams ... and Mr.
BM Dupuis ... were junior employees on the system construction team used
for this project. The system construction teams made overtime on the dates
listed above. Many board decisions in the past cite the importance of
seniority as it applies to overtime and work opportunity. Seniority is one of
the basic cornerstones of collective bargaining. Third Division Award 5346
recognized this principle when it held:
`Despite Carrier's contention to the contrary, it is well settled by
awards of this Board that even though there are no specific rules in
the Agreement covering the situation, seniority is the essence of the
Collective Agreement and that it applies in determining preference to
overtime work of a given class.'
"The principle of assignment of overtime on a seniority basis unless
restricted by the rules agreement was repeated in Third Division Award
14161 where we read:
`It our view that unless there is a rule in the agreement or a negotiated
local practice providing for the assignment of overtime on some basis
other than seniority, that seniority should be the determining factor.
This Board has so held on a number of occasions.'
"
As previously, noted the Carrier never addressed the Organization's arguments or
contentions regarding the issue of seniority, however, it did recognize that this issue was
relevant. Carrier's only comments were made at the closing stages of this grievance
wherein, they stated that:
"...The Organization contends that the Carrier violated the current
Agreement by allowing junior construction employees to perform overtime
service.
The Carrier is going to deny this claim until it can meet in conference with
the Organization in an attempt to resolve this dispute."
It is obvious that the Carrier was initially willing to go down the right path and resolve
this dispute based on the Organization's arguments. It was that reason they never
addressed the question regarding seniority rights. For whatever reason Carrier abandoned
the right path in the hopes that the Board might stumble down a path that would lead to
nowhere. Carrier's venture paid off in this case, but its final destination ended up in
never-never land.
If the Majority had reviewed the entire record of handling, this issue would have been
resolved. Unfortunately, the Organization has to make another trip to the Board.
Respectfully submitted,
0.
A. PA t~ ~aj
C.A. McGraw, Labor Member