The disputed work in the claim, dated November 25, 2008, is the renewal of the East Barber Street road crossing at Mile Post 40.2 in Hartford, Connecticut. On October 3 and 4, 2008 the Carrier assigned this work to a Rule 89 corridor rail/switch gang.
The Organization asserts that, consistent with past practice, the work should have been assigned to Division maintenance forces because no auxiliary crossing gang was established to perform the work. The Organization alleges that the Carrier violated Rule 55, Preference for Overtime, when it did not assign the work to the Claimants
The progression of the claim on property shows that it was processed in the usual and customary manner including placement before the highest officer of the Carrier designated to handle it. Following a conference discussion on August 13, 2009, the Organization filed a timely notice of intent with the Third Division. The claim is now properly before the Board for adjudication.
Employees assigned to the disputed work are members of a Rule 89 corridor gang, i.e., a gang established to perform certain specified categories of work across seniority district lines.
The Claimants, on the other hand, maintain seniority in various classes within the Maintenance of Way Department and are assigned to perform normal maintenance work as one of several New Haven Subdivision maintenance gangs headquartered on the New Haven, Connecticut, Northern District.
The Claimants' written statements confirm the past practice has been to assign a maintenance gang to perform crossing renewal work rather than assign such work to a Rule 89 corridor gang. Furthermore, confirmation of this past practice is the Carrier's acknowledgement that the type of work in dispute - replacing rail/ties at road crossings - has been assigned to headquartered maintenance forces, such as the Claimants, on the New Haven Subdivision.
Finally, Rule 14 (Seniority) explicitly restricts work to the seniority district and Rule 89 is an exception to Rule 14. Within Rule 89 is a list with 15 exceptions identifying work that a Rule 89 gang is authorized to perform. Crossing maintenance and installation is not one of the exceptions listed. Form 1 Award No. 41098
In the circumstances presented, the Carrier assigned normal maintenance work of dismantling, installing and related crossing renewal work at Mile Post 40.2 on the Northern District to the Rule 89 corridor gang instead of assigning it to the Claimants, a New Haven Subdivision maintenance gang on the Northern District. Deploying this Rule 89 corridor gang in this situation is a violation of the past practice where this kind of normal maintenance work is assigned to headquartered maintenance gangs within their districts (the Claimants).
In addition to a breach of past practice, the Carrier's decision not to assign the work to the Claimants constitutes a violation of Rule 55, Preference for Overtime work. There is no dispute that the Carrier did not offer the assignment to the Claimants. However, it asserts that the Claimants worked regular hours and overtime on the claim dates. Consequently, they suffered no work or monetary loss. Geographic seniority and work class seniority confine work opportunities. The Claimants may have been working on the claim dates, but that does not justify denying the claim when, as here, the Carrier improperly assigned employees without following Seniority Rules.
The Carrier's improper assignment of work represents a loss of work opportunity to employees in the proper seniority district (the Claimants). A monetary remedy is appropriate consistent with Third Divisions Awards 19840, 30076 and 30408.
This Board, after consideration of the dispute 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.
THIRD DIVISION AWARDS 41098, 41099 AND 41147
DOCKETS MW-41322, MW-41323 AND MW-40755
Exception must be taken to the decision of the Majority to pay the referenced claims at the overtime rate.
In order to resolve a long-standing dispute between these parties over the question of whether penalty payments for missed overtime work opportunities on Amtrak were to be paid at the straight time rate or the overtime rate, the parties agreed to submit the issue to Public Law Board No. 4549 for adjudication. PLB 4549, with Referee Richard R. Kasher participating, determined that on Amtrak, the proper remedy was payment of the time lost at the straight time rate.
Despite what was agreed to be a final and binding decision on the issue rendered by PLB 4549 on July 14, 1988, the Organization continues to seek payment at the overtime rate and, on two occasions, has been successful in this inappropriate pursuit. Stated differently, the Third Division has consistently upheld the precedent established by PLB 4549 and paid claims at the straight time rate with the exception of Awards 38191 and 38212, which were rendered in 2007 with Referee Edwin H. Benn participating. Both of those decisions can be considered as anomalies, however, as evidenced by the following passage from Referee Benn's earlier Award 26534 which specifically dealt with the "pro rata vs. punitive" rate of pay issue:
In this vein, also see Award 31129, with Referee Dana Edward Eischen participating, wherein the Division held: CARRIER MEMBERS' DISSENT TO
Subsequently, Award 35863 (Referee Margo R. Newman) not only cited, but also quoted the following passage from Award 30686 (Referee Herbert L. Marx, Jr.):
For more than 23 years now, the Organization accepted those decisions without complaint or protest. The palpably erroneous decisions in these cases answer the question as to why the issue continues to arise.
The Majority should have followed the principle set forth in Award 32141, where Referee Dana Edward Eischen ruled:
The decision of the Majority to pay the instant claims at the overtime rate does not alter the well reasoned findings of PLB 4549, and does not reflect the accepted and acknowledged long-standing historical practice on Amtrak property, which as noted above, can only be changed by mutual agreement of the parties. CARER MEMBERS' DISSENT TO
LABOR MEMBER'S RESPONSE
TO
CAR MEMBERS' DISSENT TO
THIRD DIVISION AWARDS 4109$, 41099 and 41147
DOCKETS MW-41322, MW-41323 and MW-40755
(Referee Halter)
The Carrier Members' Dissent in this case mischaracterizes the history between the parties over the payment of damages to compensate for overtime opportunities and, therefore, a response is required. Despite the Carrier Members' efforts in creative rewriting of history, suffice it to say that PLB No. 4549 was created because the Carrier engaged in a blatant exercise in forum shopping when it exercised its statutory right to withdraw eight (8) cases from the NRAB after the parties had already scheduled the cases to be heard by the Third Division with Referee McAllister selected to sit with the Division as the neutral party. The Carrier's contention that it was agreed that Award 1 of PLB No. 4549 was to be a final and binding decision on the issue is belied by the award itself in its summary of the background facts. In the words of the award:
The jurisdiction of PLB No. 4549 could hardly have been more clearly stated. However, since the issuance of that award, the Carrier henceforth has argued that said decision should be regarded as a final and binding decision not only on the eight (8) cases decided thereby, but has also argued that it decided forevermore the issue of the rate of compensation to be paid when overtime work opportunity was improperly denied. The (perhaps unintentional) irony of the Carrier Members' position is apparent when one considers that had the Carrier accepted Awards 26508 and 26690 of this Division as having finally decided the issue, it would never have engaged in its forum shopping adventure and the Board would now be spared the eternal revisitation of this issue.
Since the issuance of the award of PLB No. 4549 in 1988, this Board has had the opportunity to revisit this particular controversy on multiple occasions. In certain cases, cited within the Carrier Members' Dissent, the Carrier has been able to lead a majority to accept its inaccurate representation of the circumstances surrounding the establishment of PLB No. 4549 and its jurisdiction, with the result that the Majorities therein gave undo deference to the decision of that Public Law Board. In other instances, the Board has adopted the well-reasoned position that the purpose of an award of damages is to compensate the claimant in the amount he would have received from the Carrier had the Agreement not been violated. As this Division held in Award 26508, quoting from Award 25601:
In this connection, in addition to Third Division Awards 38191 and 38192 cited by the Carrier, attention is invited to Third Division Awards 30448, 32223, 32371 and 38212, all of which sustained claims for the loss of overtime work opportunities at the overtime rate. In addition, we would invite attention to Third Division Award 30586, Awards 9 and 61 of PL13 No. 4979 and Awards 113 and 159 of SBA No. 986, wherein the Boards involved awarded compensation at the overtime rate when the claimant therein had been deprived of overtime work opportunities because of an unjust disqualification, suspension or dismissal.
While asserting a longstanding and historical practice of awarding compensation in these cases at the straight time rate, the Carrier Members contended that the Organization accepted decisions denying compensation at the overtime rate "without complaint or protest" for more than twenty-three (23) years. Of course, such contention is absurd. In this connection, an unbiased review of the awards cited by both parties will reveal that the Organization has continued to claim compensation at the overtime rate in every instance involving the loss of an overtime work opportunity. It would defy logic to imply therefrom that the Organization had acquiesced to the asserted practice.
Moreover, we note that the Carrier continues to attempt to frame the issue involved as one of awarding compensation at the "pro rata vs. punitive" rate of pay. Of course, as previously noted, the award of damages in the amount the Claimant would have received from the Carrier had there been no violation of the Agreement merely compensates the Claimant for his loss of work opportunity. There can be no question but that such a result is compensatory and not punitive.
Finally, even as each side attempts to stack up lists of "precedent" awards, it must be remembered that the value of an award as precedent depends on the quality of the reasoning therein. It should be noted that in Award 1 of PLB No. 4549, that Board specifically stated that it did not find the rationale of the Carrier was superior to the rationale argued by the Organization. Nonetheless, Labor Member's Response to
that Board found for the Carrier based on which side had the longest list of awards. Inasmuch as PLB No. 4549 essentially decided to ignore the facts of the eight (8) cases, the issues raised therein and the substantive arguments presented in the cases before it, it is essentially worthless as precedent in deciding subsequent cases. To the contrary, however, within awards sustaining the Organization's position, as in the instant cases as well as in Third Division Award 26508 (quoted above), the Board has clearly enunciated its reasoning in upholding compensation at the appropriate overtime rate, that the remedy to compensate the Claimant for the violation is appropriate compensation in the amount the Claimant would have received from the Carrier had there been no violation of the Agreement. In view of the foregoing, Awards 41098, 41099 and 41147 stand as clear precedent for consideration in deciding any future disputes that may arise.
