This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
This claim protests the Carrier's use of Transportation Department employees (BO51 switch crew) rather than the Claimants (Maintenance of Way and Structures Department employees headquartered at Boone, Iowa, who regularly work from 8:00 A.M. to 4:30 P.M., Monday through Friday) to remove snow from six switches at the Boone Yard on Monday, February 11, 2008, between 6:00 P.M. and midnight. When the Carrier initially denied the claim based upon a failure to prove such work was actually performed as alleged, the Organization provided two signed statements from one of the Claimants indicating that he observed the work being performed during the evening of February 11, and was told by a named employee of the switch crew the following day about the assignment and its specifics, including the equipment used (a picture was also provided) as well as the fact that a supervisor was requested to call out Maintenance of Way forces, but refused to do so. In its final denial, the Carrier stated that cleaning switches is a non-class specific job and that train crews have been doing it for years as part of their job, indicating that manager statements to this effect were attached; no such statements appear in the record.
The Organization contends that cleaning snow from switches is scope-covered work (maintenance of track) specifically reserved to employees of the Track Subdepartment under Rules 1, 2 and 3 of the Agreement, and that this is not a general Scope Rule, citing Third Division Award 36932 and Public Law Board No. 1844, Awards 16, 17, and 64. It asserts that the Claimants were entitled to be called out for the work under Rule 31(A) because they were available and within the gang that regularly performs this work, and that monetary reimbursement is the appropriate remedy for this loss of overtime work opportunity, relying on Third Division Awards 17842, 17952, 27593, and 28020.
The Carrier argues that (1) Rule 1 has been held to be a general Scope Rule that does not specifically reserve work to employees, citing Third Division Award 28789 (2) the Organization failed to meet its heavy burden of proving that work of this nature (removal of snow around a yard switch by an air device) is considered maintenance work under the Agreement and (3) it has been performed exclusively by employees by custom or historical practice to the exclusion of all others on a Form 1 Award No. 41002
system-wide basis, relying on Third Division Award 32646 and Public Law Board No. 6302, Awards 11 and 12. The Carrier points out that there was no evidence of custom or practice provided in this case, requiring denial of the claim. It also contends that the claim is excessive because the Claimants were fully employed, and a monetary remedy would be unjust enrichment, citing Third Division Award 19153.
The issue that must be resolved in this case is whether the work of cleaning snow from switches in a Carrier yard is "maintenance of track" work exclusively reserved to employees under Rule 1(B) of the Agreement, which provides, in pertinent part:
A careful review of the record convinces the Board that the work in dispute is encompassed within the work reserved to Maintenance of Way and Structures Department employees in Rule l(B) because snow removal from track areas has been found to be "maintenance of track" work, and this Rule has been interpreted to clearly reserve such work to employees. See Public Law Board No. 1844, Awards 17 and 64. As noted in those Awards, the absence of evidence of historical practice or custom is irrelevant in the face of clear Agreement language. However, the Carrier's statement that cleaning switches has been done by train crews for years was just an assertion without direct evidentiary support, and does not relate specifically to snow removal from switches in a Carrier yard, as was involved in this case. The Carrier's reliance on Third Division Award 28789 is misplaced, because the Scope Rule interpreted therein does not contain the same language as that reprinted above and specifically addressed in the Awards of Public Law Board No. 1844. There is no dispute that (1) the Claimants regularly performed basic track maintenance work, including snow removal, at Boone Yard, (2) they were not called out to perform this work under Rule 31 (A) and (3) because it was done outside their regular hours, it represents a lost overtime opportunity for them. Accordingly, we Form 1 Award No. 41002
conclude that the Carrier violated the Agreement by assigning such work to Transportation Department employees rather than the Claimants, and we sustain the claim.
