Form l NATIONAL RAI LROAD ADJUSTMENT BOARD
THIRD DI VISION
Award No. ..n 700 Docket No. SG-41597
l3-3-NRAB-00003-1 l0227
The Third Division consisted of the regula r mem bers and in addition Referee Ma rgo R. Newma n when award was rendered.
(Brotherhood of Railroad Signalmen PARTI ES TO DISPUTE: (
(National Railroad Passenger Corporation (Amtrak) STATE M E NT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the National Railroad Passenger Corp.:
Claim on behalf of R. B. Ryan for four hours at the time and one half rate of pay, commencing July 18, 2009, and continuing until this dispu te is resolved, account Carrier violated the current Signalmen 's Agreemen t, particula rly Appendix B-5, Section IV - Trou ble Desk, and Assistant Signal Foreman Memorand u m of Agree ment dated August 8, 1980, when it created an unq ualified trou ble desk position at the Providence M.O.W. Base RI, and denied the Claiman t these work opportu nities. Carrier's File No. BRS-SD- 1134. BRS File Case No. 14528-NRPC(S)."
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.
This dispu te involves a challenge to the Carrier's creation of a Trou ble Desk Signal ma n position as a violation of the Assista n t Signal Forema n Agreemen t of August 8, 1980 and the Overtime Call List for the Trou ble Desk, the perti nen t portions of w hich appea r below.
IV. Trou ble Desk Overtime on the Trou ble Desk will be offered as follows:
A. The A:ssista nt Foreman-Trou ble Desk working the preceding trick will be offered the opportu nity to work the first four (4) hours of the vaca ncy and the Assistant Foreman Trou ble Desk scheduled for work the succeeding trick will be offered the opportunity to wo rk the last four (4) hours of the vacancy.
M EMORANDUM OF AGREEMENT DATED AUGUST 8, 1980
3. It is also agreed that the positions presently assigned to the Communications and Signals Trou ble Desk located in New Haven, Connecticut, will be classified as Assistant Foreman and will be readvertised in accordance with the current rules of the Agreement."
The Claimant established seniority as an Assista nt Foreman on March 8, 1984 and, at the time of the claim, was regularly assigned to the second trick Assista n t Forema n Trouble Desk position headquartered at the Providence, Rhode Island, M.O.W. Base with rest days of Monday and Tuesday. The Carrier advertised and filled a third trick Signalman Trou ble Desk position on July 18, 2009 when it was una ble to fill the vacan t third trick Assistant Foreman Trou ble Desk position despite repeated advertisements. This claim disputes the creation of that "unqualified" position and the denial of the Claimant's Agreement right to be offered the opportunity to work overtime on the vacant third trick Assistant Foreman position.
The Organization argues that the exact same issue raised by this claim has already been determined between the parties on this property in Third Division Awa rds 40976, 40977 and 40980, and the holding therein that the Carrier violated
the clea r la nguage of the Memorand u m of Agreemen t req uiring Trou ble Desk positions to be filled by Assistan t Signalmen, when it filled such position with a Signa lma n, thereby denying the Claimant's contractual entitlemen t to be offered overtime i n viola tion of Appendix 8-5 (IV) is sta re decisis in this case and m ust be followed by the Boa rd. It posits that the Carrier found itself in the position of not being able to fill vacan t Assista nt Forema n Trou ble Desk positions beca use it failed to prope rly add ress attrition, and that fact does not provide a valid basis or justifica tion for it to violate the Agreement.
The Carrier contends that the Organization failed to meet its bu rden of proof in this case, beca use there was no showing that the Signalma n working the third trick Trou ble Desk position was performing work reserved to the Assistant Forema n classification, citing Third Division Award 28581. It contends that its ina bility to get qualified bidders for the vacant Assistant Foreman positions is justification for establishing Signalman positions on the Trou ble Desk to provide administra tive su pport and to obtain on-the-.iob training so as to enable it to attract and fill the vaca n t positions with qualified employees. The Carrier argues that it may elect to blank vaca nt Assistant Foreman positions and assign such functions to other classifications of employees without violating the Agreement, noting that such positions were not abolished and remained advertised. It points to its Dissent in the prior decided cases relied u pon by the Organiza tion, to show that those Awards were wrongly decided and pal pably erroneous, and should not be followed herein.
A careful review of the record convinces the Board that the Organization has sustained its bu rden of provin g a violation of the Memorand um of Agreement and Append ix B-5 (IV) in this case. As noted, Third Division Awards 40976, 40977 and 40980, between these parties on this property, decided the issue presented by this claim in favor of the Organization. The same facts were presented, and the same arguments were made by both parties, in those cases. We adopt the following excerpt from Third Division Award 40976 as applica ble to, and determinative of, the instan t case:
"The Carrier forcef ully argued that the work performed was not reserved for the Assistant Foreman class, pointing to Third Division Award 28581. That Award is significantly different in finding that the Organization did not meet its burden of proof based on a general Scope Rule that work was reserved to those assigned to the Trouble Desk. In this instance there is no argument of scope, but the August
The Board is sensitive to the Carrier's dilemma, but required to enforce the negotiated language of the parties' Agreements. There is no rebuttal in this record that Alves was assigned to work a position at the Trouble Desk that under the Memorand um 'will be classified as Assistant Foreman ' and performed not all, but substantially the work of the Assistant Foreman.
Certainly, the Carrier has the right to blank positions, but it did not do so. This record indicates that it filled the C&S Trouble Desk vacancy with positions other than an Assistant Foreman. The record contains substantial probative evidence that Alves filled the vacancy and performed C&S Trouble Desk work exactly as the Assistant Foreman would perform. Accordingly, the Claimant lost the opportu nity to work overtime under the Agreement."
While the Carrier's Dissent disagrees with the conclusion of the majority of the Board, we are una ble to accept its argument that the basis for the finding or its rationale is palpa bly erroneous or illogical. Rather, we are convinced that the Board's findings above are equally applicable herein, and should be followed under the principle of stare decisis. See, Third Division Awards 39294 and 39006. The Carrier's inability to find qualified employees to fill the vacant Assistant Foreman Trouble Desk positions does not permit it have the job performed by a Signalman for less pay, as it did in this case. Accordingly, under Appendix B-5 (IV) the Claimant, who was the Assistant Foreman working the preceding trick, is entitled to four hou rs' pay for each day the Signalman performed work on the third trick on the Trouble Desk during the claim period. As was the case in Third Division Award 40976, the Carrier argues that the penalty requested was excessive because straight time is paid for lost work opportunities on this property, and there was no rebuttal by the Organization. Therefore, the claim is sustained for payment at the straight time rate of pay.
Claim sustained in accordance with the Findings.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 16th day of September 2013.
NATIONAL RAILROAD ADJUSTMENT BOARD THIRD DIVISION
INTERPRETATION N0.1 TO AWARD NO. 41700 DOCKET NO. SG-41597
NRAB 00003-110227 (Old)
NRAB 00003-140519 (New)
NAME OF ORGANIZATION: (Brotherhood of Railroad Signalmen
NAME OF CARRIER: (National Railroad Passenger Corporation (Amtrak)
In Third Division Award 41700, which was adopted on September 16, 2013, the Board sustained the claim in accordance with the Findings, holding that the Carrier violated the Assistant Signal Foreman Memorandum of Agreement and Appendix B-S(IV) by filling the C&S Trouble Desk vacancy with positions other than Assistant Foreman. Therein the Board directed that, "under ·Appendix B-S(IV) the Claimant, who was the Assistant Foreman working the preceding trick, is entitled to four hours' pay for each day the Signalman performed work on the third trick on the Trouble Desk during the claim period."
A dispute arose over the proper interpretation of·Award 41700 and the amount of time owed to the Claimant. Specifically, the Carrier asserts that payment is limited to the hours worked by the Signalman named specifically in the initial claim (R. Barros), and does not include any hours worked by other non-Assistant Signal Foremen on that third trick Trouble Desk assignment after July 18, 2009. The Organization disagrees, and seeks payment for all hours worked by employees outside the class during the continuing claim period commencing on July 18, 2009.
Award 41700 was based upon the following Statement of Claim:
"Claim on behalf of R. B. Ryan for four hours at the time and one half rate of pay, commencing July 18, 2009, and continuing until this dispute is resolved, account Carrier violated the current Signalmen's Agreement, particularly Appendix B-5, Section IV - Trouble Desk, and Assistant Signal Foreman Memorandum of Agreement dated August 8, 1980, when it created an unqualified
The Board noted that: "This dispute involves a challenge to the Carrier's creation of a Trouble Desk Signalman position as a violation of the Assistant Signal Foreman Agreement of August 8, 1980 and the Overtime Call List for the Trouble Desk . . . ." (Appendix B-5 (IV). The Carrier never argued that the Organization
.had impermissibly attempf.ed to broaden the claim at the Board by not naming Signalman Barrios, and acknowledged on the property that the claim was for creating an unqualified Signalman position on the Trouble Desk.
In finding that the Carrier violated those provisions, the Board relied upon Third Division Awards 40976, 40977 and 40980, which decided the same issue between these Parties on this property based on the same facts and arguments. It adopted as applicable, the excerpt in Third Division Award 40976 noting that by filling the C&S Trouble Desk vacancy with positions other than an Assistant Foreman, the Carrier violated the Assistant Signal Foreman Memorandum of Agreement, and that by denying the Claimant the opportunity to work overtime, it violated Section IV of Appendix B-5. The Board followed those Awards under the principle of stare decisis. It stated that "the Carrier's inability to find qualified employees to fill the vacant Assistant Foreman Trouble Desk positions does not permit it to have the job performed by a Signalman for less pay, as it did in this case."
In line with such reasoning, the Board's finding that the Claimant ". . . is entitled to four hours' pay for each day the Signalman performed work on the third trick on the Trouble Desk during the claim period . . . " does not support the Carrier's contention that such monetary remedy was intended to be limited to the occasions when the specific Signalman who occupied that position at the time the initial claim was filed, and was identified by name in the Organization's initial claim correspondence, held the Trouble Desk vacancy. There can be no dispute that this continuing claim was founded upon the Carrier's decision to fill the third trick Trouble Desk vacancy with an individual in a classification other than Assistant Signal Foreman. The fact that Signalman Barrios did not continuously occupy the position, but that other non-Assistant Signal Foremen were used in his stead, cannot be relied upon to limit the Carrier's liability. Although the Carrier argued that the
Because the Board found that payment at the straight time rate of pay was appropriate, we make clear that the Carrier must compensate the Claimant at her straight time rate of pay in compliance with the provisions of Appendix B-5 (IV) for each day that she was regularly assigned to the second trick Assistant Signal Foreman Trouble Desk position and the third trick Trouble Desk position was assigned to a non-Assistant Signal Foreman, commencing on July 18, 2009. The- · Parties are directed to make a joint check of the records in order to ascertain the appropriate number of hours for which the Claimant is entitled to compensation. pursuant to this Interpretation.
Referee Margo R. Newman who sat with the Division as a neutral member when Award 41700 was adopted, also participated with the Division in making this Interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 26th day of August 2015.
192 Third trick in violation of the aforementioned Asst. Foreman Agreement at time and one half rate of his pay.”
Sharon R. Jindal Michael C. Lesnik