Form 1 Award No. 41061
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.
At the outset, it must be noted that within a letter dated August 9, 2004, the Carrier's highest designated officer raised an argument that, if found to have merit, would have deprived the Board of jurisdiction over this claim. However, before the Board, the Carrier waived its jurisdictional argument and the Board therefore makes no finding thereon. Consequently, the Board will proceed to consideration of the merits of the claim.
After a series of mergers and acquisitions, the former Denver and Rio Grande Western (D&RGW) became a part of the Union Pacific Railroad Company (UPRR) through the merger of the Union Pacific and the former Southern Pacific Transportation Company component railroads. . Following that merger, an Implementing Agreement dated December 1, 1998 was negotiated consolidating the former Colorado Division Seniority District of the D&RGW into the UPRR Wyoming Division and Eastern District and establishing the conditions under which employees' seniority would be handled when the Maintenance of Way employees covered by the former D&RGW were brought under the coverage of the Collective Bargaining Agreement in effect on the Wyoming Division and Eastern District between BMWE and UPRR.
Among other things, Section 1 of the Implementing Agreement provided that the former Colorado Division lines of the D&RGW would be transferred to and become a part of the UPRR Wyoming Division and its Eastern District. Section 1 further provided that the Collective Bargaining Agreement between BMWE and D&RGW would be abrogated effective the date of signing. Paragraphs (A) and (B) of Section 2 of the Implementing Agreement addressed the consolidation of the former D&RGW Colorado Division territory with the UPRR Wyoming Division and Eastern District seniority rosters, as follows:
Section 12 of the Implementing Agreement established a 90-day seniority roster protest period after the distribution of the new seniority rosters and designated the Carrier official to whom written protests were to be sent.
The basic facts underlying this claim are not in dispute. Beginning on December 16, 2003 and continuing, the Carrier assigned Eastern District Steel Erection Gang 4943 to perform work rebuilding a timber bridge on the Wyoming Division at Mile Post 19.9 in the vicinity of Louviers, Colorado. The location of the bridge was former D&RGW Colorado Division territory. The Claimants possessed "prior rights" on this territory under the Implementing Agreement and the employees assigned to the Eastern District Steel Erection Gang 4943 did not possess such prior rights.
The Organization claims that the Claimants should have been assigned to the work at issue here because it was performed within their prior rights territory (the former D&RGW Colorado Division) by employees not holding prior rights within that territory. In essence, the Organization argues that the language of the Implementing Agreement granting the former D&RGW employees "prior rights to all positions and work on the former D&RGW Colorado Division territory associated with their seniority for as long as they maintain the seniority" precludes the Carrier from assigning employees who do not hold such prior rights to perform work on the Claimants' prior rights territory.
For its part on the merits, the Carrier first characterizes the claim as one based on the dovetailing of the seniority rosters pursuant to the Implementing Agreement. Thus, it argues, any objection to the implementation of the dovetailing of seniority rosters should have been protested years earlier and are now barred under the doctrine Form 1 Award No. 41061
of laches. Second, the Carrier argues that the Implementing Agreement does not reserve this work to the Claimants to the exclusion of Wyoming Division and Eastern District employees lacking prior rights on the former D&RGW Colorado Division.
Regarding the Carrier's argument concerning laches, examination of the arguments advanced during the handling of this dispute on the property reveals that the Organization did not frame its position as a protest of the handling of the Claimants' placement or notations on any seniority roster. The Board therefore finds that such argument is not germane to its deliberations in this instance. Thus, the Carrier's argument in this regard is dismissed.
With respect to the reservation of the work to the Claimants, to the exclusion of Wyoming Division and Eastern District employees lacking prior rights on the former D&RGW Colorado Division, we note that the Board considered a similar claim involving a similar Implementing Agreement between the UPRR and BMWE wherein a portion of the former Chicago & North Western Transportation Company (C&NW) District 4 was consolidated into the UPRR Nebraska Division and Eastern District. In Third Division Award 38140, the Board held:
The language of the December 1, 1998 Implementing Agreement and the issues involved in this case are closely similar to those involved in Award 38140. We do not
Form 1 Award No. 41061reasoning therein to resolve the instant dispute. Therefore, we find that the December 1, 1998 Implementing Agreement did not restrict former UPRR Wyoming Division and Eastern District employees to work on their former territory. Rather, they had the right to work throughout the consolidated Wyoming Division and Eastern District. Moreover, the use of Wyoming Division and Eastern District B&B Subdepartment employees (Eastern District Steel Erection Gang 4943) on the Wyoming Division to perform necessary bridge repair and maintenance work does not create a situation in which the former D&RGW employees are denied positions or work pursuant to their prior rights, especially when those employees are assigned to B&B Subdepartment positions pursuant to their seniority and are working within their prior rights territory. Accordingly, the claim must be denied.
Finally, the Board notes that the issues and arguments raised during the handling of this dispute on the property on the merits of the claim were confined to the proper implementation and interpretation of the December 1, 1998 Implementing Agreement and the "prior rights" accruing to the employees covered thereunder. Although both parties included additional information and argument in their Submissions and presentations to the Board, we confined our consideration and findings, as we must, to only those facts and contentions that were properly part of the evidentiary record developed during the handling of the claim on the property.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.