THIRD DIVISION
Award No. 44683 Docket No. MW- 45750
22-3-NRAB-00003-190643
The Third Division consisted of the regular members and in addition Referee Pilar Vaile when award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
PARTIES TO DISPUTE: (
(Keolis Commuter Services, LLC STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
(l) The Agreement was violated when the Carrier assigned Carrier supervisors to perform Maintenance of Way Department work operating a boat in waters around on-going bridge work, boat maintenance and assistance with bridge crew work on the Grand Junction Line beginning on May l, 2018 and continuing instead of assigning Messrs. D. Haskins, R. Shanley and G. Haberland thereto (Carrier's File BMWE 14/2018 KLS).
(2) As a consequence of the violation referred to in Part (l) above, Claimant D. Haskins shall be compensated seventy-two (72) straight time and eighteen (18) overtime hours; Claimant R. Shanley shall be compensated forty (40) straight time and eighteen
(18) overtime hours; and Claimant G. Haberland shall be compensated for eight (8) straight time and five (5) overtime hours at each of their respective rates of pay[,] as well as all credits for vacation and all other benefits for the dates claimed for their missed work opportunity.”
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.
Claimants D. Haskins, R. Shanley and G. Haberland have established and held seniority in the Bridge and Building (B&B) Department on the dates involved herein.
In or about early 2018, the Carrier purchased a 26-foot motorized boat for licensed Bridge Inspectors to use while inspecting bridge work on the Grand Junction Line. Operation of this boat requires a special operator’s license, due to its size and nature. After purchasing the boat, and beginning on May 1, 2018 and continuing, the Carrier assigned Carrier supervisors to operate the large, motorized boat in waters around on-going bridge work.
The Organization timely filed a claim under the Railway Labor Act, 45 USC
§§ 151, et seq., which was denied on the property and timely referred with or without an agreed upon extension to the National Railroad Adjustment Board for final adjudication.
The Organization argues that the Carrier violated the Agreement by assigning Carrier supervisors to perform Maintenance of Way Department work operating a boat in waters around on-going bridge work, doing boat maintenance, and assisting with bridge crew work on the Grand Junction Line instead of assigning Messrs. D. Haskins, R. Shanley and G. Haberland thereto. Generally speaking, boat maintenance and assisting with bridge crew work are work that is ordinarily and customarily performed by Maintenance of Way Department members in this territory. Moreover, in this instance, the Organization provided a statement signed by six (6) bargaining unit members asserting that, “[i]n the past, B&B mechanics and foreman have manned the smaller and non-motorized boat(s) provided by the Carrier for safety and work-related tasks on various waterways such as rivers, ponds, and oceans.” It further argues that it is a well-established principle that
supervisory personnel cannot validly be assigned to replace Agreement covered forces in the performance of scope-covered work. The Organization also argues that it was the Carrier’s responsibility under the Agreement to train and license B&B unit members to perform the disputed work.
The Carrier argues, in contrast, that at no time did the Organization or its members conduct bridge inspections from the water, nor is there any evidence that their members have the qualifications or experience to either perform bridge inspections, or to operate a motorized boat of the kind and size utilized here. The Carrier represents that it previously utilized outside contractors to perform this bridge inspection work. The Carrier also maintains that the only boat B&B Dept. employees used in the past on the Grand Junction Line was “a rowboat to occasionally provide safety services for other employees working on bridges and that even that work was not exclusively performed by Organization members.”
Upon consideration of the whole record, the Board determines that the Organization failed to establish below that the particular work disputed here was ordinarily performed by bargaining unit members and therefore reserved to them through Rule 1 (Scope). Notably, it provided no probative and persuasive evidence during the on-property handling that it had ever previously operated similar kinds or sizes of boats, and/or for similar purposes.
The Organization is not required to establish that the disputed work belonged exclusively to these B&B workers, employees, since the work was assigned to a Supervisor. See Third Div. Award No. 33852, BMWE and Soo Line Railroad Company (former Chicago, Milwaukee, ( St. Paul and Pacific Railroad Company) (Malin 1999); Third Div. Award No. 41353, BMWED- IBT Rail Conference and Texas Mexican Railway Co. (Halter 2012); see also Third Division Awards 15461, 25469, 28185, 41422; and PLB 7163 Award No. 85 (all holding that exclusivity is not applicable when the dispute involves a supervisor or manager performing Agreement work, rather than involving a craft dispute). However, the Organization still bears the burden to show – in a concrete, specific and non-conclusory fashion – ordinary and customary performance of the particular work claimed.
The generic and non-specific statement that was provided in this case does not address the unique features of the disputed work at issue, so do not constitute substantial evidence. See Third Div. Award No. 41708, BMWED – Int’l Bhd. Of
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 28th day of January 2022.