Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38951
Docket No. MW-37372
08-3-NRAB-00003-020406
(02-3-406)
The Third Division consisted of the regular members and in addition Referee
Dennis J. Campagna when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(BNSF Railway Company (former Burlington
( Northern Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement when, effective May 5,
2000, it abolished the Montana District Mobile Welding Crew
543-136 positions working in conjunction with the PJ-8 and
MC-3 Switch Grinders and re-established these mobile
positions, effective July 10, 2000, as "crews 481-100 and 481200 with fixed headquarters at Havre, Montana (System File BM-788-H/I1-00-0495 BNR).
2. As a consequence of the violation referred to in Part (1) above,
the Carrier shall now `advertise and assign the positions as
mobile, and that each employee assigned to the positions until
the violation is corrected, be allowed to the negotiated meal
allowance per diem of $21.25, for each calendar day, beginning
July 10, 2000 and continuing until the violation is corrected.
We request that each employee receive the negotiated lodging
allowance of $26.75 per diem for each calendar day, beginning
July 10, 2000 and continuing until the violation is corrected.
We request that each employee assigned to the positions,
receive week-end travel allowances for all travel between their
residences and end of work week, and start of work week
Form 1 Award No. 38951
Page 2 Docket No. MW-37372
08-3-NRAB-00003-020406
(02-3-406)
reporting locations, beginning July 10, and continuing. We
further request that each employee assigned to the crews
receive 5% of their earnings while assigned to the positions."'
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.
In Third Division Award 37844, these same parties sought to review the
following claim before the Board:
"(1) The Carrier violated the Agreement when on May 5, 2000 it
abolished Montana Seniority District 200 mobile welding
positions working in conjunction with Switch Grinders PJ-8
and MC-3 assigned to Welding Foreman E. Golgade, Head
Welder D. Pulse, Grinder Operators J. Doohen and F. Music
and re-established these mobile positions effective July 10, 2000
as head quartered at Havre, Montana and assigned to junior
Montana Seniority District 200 employes S. Lumsden, R. Biem,
B. Borst and P. Youngbauer. (System File B-M-791-11/11-000498 BNR).
(2) As a consequence of the violation referred to in Part (1) above,
Claimants E. Goldade, D. Pulse, J. Doohen and F. Music shall
now '. . . receive any pay differentials to which they would be
Form 1 Award No. 38951
Page 3 Docket No. MW-37372
08-3-NRAB-00003-020406
(02-3-406)
entitled from July 10, and continuing. We request that each
Claimant receive pay equal to any and all overtime paid the
positions improperly headquartered at Havre, beginning. July
10. We request that Claimants receive the $21.50 meal per
diem for each calendar day beginning July 10. We request that
Claimants receive a payment of 5% for any and all earnings
paid the employes on the positions while headquartered at
Havre. We request that Claimants receive payment for any
unreimbursed week-end travel they incur beginning July 10.
This claim is to continue until such time as the positions are
properly reassigned as mobile positions."'
In rejecting the foregoing claim, the Board noted in relevant part:
"Regardless of whether the Carrier has previously used mobile
gangs to work with switch grinders, it is not prohibited from using
headquartered crews where circumstances warrant. While the
Carrier's inherent rights are not unfettered, they must be respected
in the absence of evidence that the Carrier acted arbitrarily or
without good faith. Here, we reject the Organization's assertion that
the Carrier intentionally switched crews to avoid payment of
benefits negotiated for mobile crews. The headquartered positions
were compensated for time spent away from home and they were
appointed in the exercise of seniority according to the parties'
Agreement. No bad faith is suggested under these facts."
Res iudicata, or issue preclusion, recognizes that a final judgment rendered
on the merits is conclusive as to the rights of the parties and as to them, constitutes
an absolute bar to a subsequent action involving the same claim. The Board has
consistently and for good reason followed the res iudicata principle. (See Third
Division Awards 37711 and 28550, together with Awards cited therein.)
Form 1 Award No. 38951
Page 4 Docket No. MW-37372
08-3-NRAB-00003-020406
(02-3-406)
Following a careful review of the instant matter, we find a substantial identity
of the claim decided by the Board in Third Division Award 37844. Accordingly, the
Board finds the issue before us is res iudicata, and the claim must be dismissed.
AWARD
Claim dismissed.
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 29th day of February 2008.