Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39912
Docket No. MW-3812'7
09-3-NRAB-00003-040011
(04-3-11)
The Third Division consisted of the regular members and in addition Referee
Brian Clauss 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 Agreement was violated when the Carrier faded to properly
post the April 1, 2001 bulletin for a Group 2 Operator
(Undercutter Position No. 1987'7) at Spokane, Washington as
required by Rule 20 and thereby denied Mr. L. D. Ostereich the
opportunity to bid and be assigned to said position per his
seniority. (System File S-P-84'7-0/11-01-02'72 BNR).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant L. D. Ostereich shall be assigned the aforesaid Group 2
Machine Operator position and he shall `. . . receive the
difference in pay between his GP-3 pay he did receive and the
GP-2 pay he should have received. We also ask for any overtime
a junior Employee got while working the GP-2 positions and any
future loss of earnings occurred until the violation has stopped."'
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 39912
Page 2 Docket No. MW-3812'7
09-3-NRAB-00003-040011
(04-3-11)
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.
The Organization maintains that the Carrier violated the Agreement when it
faded to properly make bulletins available as required by Rule 21A. The Carrier
counters that the Bulletins were posted on the crew bus and available to the
Claimant and his crew.
On May 5, 2(01, five members of the SC-04 Mobile District crew, including
the Claimant, signed a letter to Manpower Planners that states, in pertinent part:
"Bulletins:
We the undersigned members of SC-04 Mobile District crew, protest
not receiving the last two sets of bulletins.
During the periods between April 1st and April 13'h we worked 10 or 12
hours a day including bus time. The thought of jumping into a traffic
jam after work to find the nearest depot or tool house which we would
not have a key access to is one valid reason for not seeing bulletins.
April 12 we worked late on a Friday and then moved over a weekend to
Ritzeill Wa. Again working unusual hours 10 am until 6:30 pm plus
another hour bus ride. Still no bulletins or time to drive to Spokane 60
miles away to find locked bulletins.
On May
5th
we finally seen bulletin which close shortly. Also on May
5`h
a call was placed to [M]anpower [P]tanners asking for help or a
better plan for receiving bulletins. After a 20 minute long distance cell
phone charge we were denied our right to have bulletins sent to a
responsible member of our gang.
Form I Award No. 39912
Page 3 Docket No. MW-38127
09-3-NRAB-00003-040011
(04-3-11)
Enclosed is a bid form from just one of the six employees on SC-04.
Many other complaints from TP-04 about the lack of bulletins have
been noted.
Perhaps Manpower reverted back to no bid no bump. If so, please
notify us.
It could be possible that these missing bulletins are purposely
misplaced and it is not fault of Manpower Planning. If so, we
apologize."
Assistant Roadmaster T. Smith was assigned to TP-04 and SC-04. He
authored a memo dated October 10, 2001, which stated:
"This letter states that all job bulletins have been posted on the gang
bus, for the workseason 2001 for both TP04 and SC04 crew members.
Both TP04 and SC04 crew members have been informed of this at
several morning job briefings throughout the work season. One
problem we have had is that after bulletins have been posted on the
bus, they are taken and not returned even though we ask that they
remain on the bus. Again all crew members from TP04 and SC04 have
been made aware of this on several occasions."
The issue before the Board is whether the postings were properly bulletined.
Rule 21 Bulletin Procedure provides:
"Except as otherwise provided in this Agreement, new positions or
vacancies subject to bulletin, as provided in Rule 20, will be bulletined
for a period of fifteen (15) calendar days at the headquarters or outfits
of gangs in the sub-department of employes entitled to consideration in
filling of the position. Such bulletining will be numbered consecutively
by the issuing officer commencing on January 1st of each year."
The Rule 21 Bulletin Procedure was modified by the Consolidated Seniority
District Letter of Agreement, in pertinent part:
Form 1 Award No. 39912
Page 4 Docket No. MW-38127
09-3-NRAB-00003-040011
(04-3-11)
"A. New positions or vacancies subject to bulletin under the
Agreements referenced above will be bulletined for ten (10)
calendar days instead of the times specified in the relevant rule
in those Agreements."
The Claimant was assigned to Gang SC-04. During the handling of the claim,
the Carrier stated that the Bulletins were sent to the Foreman working in
conjunction with SC-04 and mailed to the gang's corporate lodging. The Carrier
continues that the gang outfits are now hotels and motels and that the bulletins are
therefore posted on the crew bus. Further, Gang SC-04 worked with Gang TP-04
and the crews shared the bus The crews reported to the same Assistant Foreman,
and his statement that the bulled were posted on the crew bus should be
dispositive. Further, the Claimant could have requested that a bulletin be faxed to
him at the hotel using the Carrier's fax system for Bulletins.
According to the Organization, the statement of the Assistant Roadmaster is
anything but dispositive arid does not serve to refute the claim. The Ascent
Roadmaster plainly admits that the bulletins were removed from the bus. The
missing bulletins were not replaced and the statement of the members of Gang SC04, that they never received the notices, stands unrefuted. The fax system is
voluntary, not pursuant to a Rule, and faxes to hotels are expensive - a cost the
Carrier does not reimburse. Further, mailing the Bulletins to the hotel is not the
same as posting them.
The Board carefully reviewed the evidence and agrees with the Organization.
The Carrier states that it posts the Bulletins on the crew bus. Gang SC-04 alerted
the Carrier that they had not been receiving recent bulletins and the Assistant
Foreman acknowledged that the Bulletins, although originally posted on the bus,
were being taken from the bus. The statement of Gang SC-04 members shows that
those bulletins were not replaced and were not seen. The claim that the bulletins at
issue were not properly posted is uncontradicted.
On the issue of damages, the Carrier argues that the claim is excessive and
unproven, that the Claimant was fully employed and the claim that he would have
bid to a higher rated machine is speculation. The Organization maintains that the
measure of damages is the difference between the Group 3 and Group 2 Machine
Operators. The Board concurs with the Organization that the measure of damages
Form I
Page S
Award No. 39912
Docket No. MW-38127
09-3-NRAB-00003-040011
(04-3-11)
is the difference in pay between a Group 3 Machine Operator and a Group 2
Machine Operator. See Third Division Award 27970. Therefore, the claim will be
sustained for compensation at the pro rata rate.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the ate 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 31st day of August 2009.