THIRD DIVISION
Award No. 44694 Docket No. MW-46160
22-3-NRAB-00003-200216
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:
As a consequence of the violation referred to in Part (1) above, Claimant J. Baker shall now ‘... be compensated nine (9) hours of his respective time and one-half rate of pay, as well as all credits for vacation and all other benefits for the date claimed for the missed work opportunity. Please advise the pay period in which the Claimant will be paid.”
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.
Claimant J. Baker has established and maintains seniority in the Bridge and Building (B&B) Sub-department of the Carrier’s Maintenance of Way Department. At the time of this dispute, the Claimant was assigned to the position of B&B Mechanic headquartered at Lynn on the East Route Main Line. The headquartered position at Lynn is ordinarily/customarily responsible for maintenance work at the Lynn Station.
Employee J. Mercado has also established and maintains seniority in the B&B Subdepartment of the Carrier’s Maintenance of Way Department. At the time of this dispute, employee J. Mercado was assigned to the position of B&B Mechanic headquartered at Salem. The position at Salem is ordinarily/customarily responsible for work on moveable bridges.
On September 26, 2018, the Carrier called J. Mercado instead of the Claimant for the overtime service of assisting contractors performing maintenance work at the Lynn Station between the hours of 10:00 P.M. and 7:00 A.M. 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 Agreement was violated when the Carrier improperly assigned Mr. Mercado, who was not headquartered at Lynn, to the aforementioned overtime service at the Lynn Station on September 26, 2018; and thereby deprived the Claimant of said work opportunity. Rule 11.4(b) clearly and unambiguously states that: “… Preference to overtime work other than in (a.) above, shall be to the senior available qualified employee at the headquarters who ordinarily and customarily performs such work.” (Org. Subm., emphases in original.) Here, there is no dispute that the Claimant was headquartered at Lynn and had the ordinary and customary responsibility of performing maintenance work at the Lynn Station. There is also no dispute that Mr. Mercado is headquartered at Salem and ordinarily/customarily performs work on moveable bridges. As such, this work
should have instead been assigned to the Claimant and failure to do so violated Rule 11 because it denied the Claimant overtime opportunities, and also denied him the benefit of his valuable property right of seniority.
The Carrier agrees that it offered Mr. Mercado the overtime work at Lynn Station on September 26, 2018 before Claimant, but asserts that “it was required to do so by the established contractual process for assigning overtime.” The Carrier asserts that
[t]he longstanding procedure for hiring employees for overtime, and which is addressed by the collective bargaining agreement in Rule 11(4), has not changed. When overtime work needs to be assigned, the Carrier first offers the work to qualified employees within the established work territory subdivision by rank and seniority. If no employee within the territory subdivision agrees to perform the work, the work is then offered to qualified employees on the overtime list by seniority.
The Carrier complied entirely with this well-established process in assigning Mr. Mercado, himself an Organization member, to perform the work instead of Claimant.
(Carrier Submission at 2, emphases added.)
Upon consideration of the whole record developed on-property, the Board finds and concludes as follows, beginning with review of Rule 11.4(b):
“Rule 11 - OVERTIME
…
4. When necessary to work employees under this Rule, the senior available qualified employees will be called according to the following:
Preference to overtime work on a regular work day which precedes or follows and is continuous with a regular assignment shall be to the senior available qualified employee of the gang or the employee assigned to that work.
Preference to overtime work other than in (a.) above, shall be to the senior available qualified employee at the headquarters who ordinarily and customarily performs such work.”
The Carrier appears to argue that territory assignment is one of the “qualifications” Management has chosen for overtime selection, for which it is entitled deference absent a showing of arbitrariness or capriciousness in the selection of the overtime qualification. Specifically, it asserts that,
it is well settled that, under this collective bargaining agreement, the Carrier is the entity that determines who is qualified to perform any assignment, and in the present matter, the Carrier decided that Mr. Mercado was qualified to perform the assignment. See MBCR, PLB 7007, Case No. 14 (April 9, 2009, Meyers) ("[i]t is fundamental that the Carrier has the right to set the job skill requirements when it assigns work to employees. The carrier has the right to determine who is qualified to perform the job."). That ends the inquiry. Claimant was less senior than another qualified employee in his same territory and so was not offered the job first.
(Carrier Submission at 6.)
It is true that it remains Management’s prerogative under Rule 11 to determine job qualifications. See PLB No. 7007, Case No. 36, BMEW and Mass. Bay Commuter Railroad at 3 (Meyers 2011) (rejecting the Organization’s assertion that the overtime job required assignment of a Foreman was, and noting that “[i]t is fundamental that the Carrier has the right to set the job skill requirements when it assigns work to employees”, and that “[t]he carrier has the right to determine who is qualified to perform the job”) .
However, there are multiple problems with the Carrier’s proffered application of that principle to this situation. First, it goes against the plain language of Rule 11.4(b), which expressly directs that overtime selection be based on Headquarters, without any reference to “territory” assignments. Second, the Carrier’s expansive reading of its discretion to determine qualifications would swallow Rule 11, which allows only one exception to Headquarters-based seniority: “work immediately following or continuous with a regular assignment”. As seen here, it is all too easy for a Territory-based list to subvert or undermine the express
requirements of Rule 11.4(b). Moreover, that it is not a “qualification” per se, but rather a preference, is evident by the fact that the Carrier waives it if it is not met by anyone. Third, the Carrier does not point to any Awards or other evidence in support of its proposition that a Territory-based seniority list may be given priority over the express language of Rule 11.4(b). Lastly, the Carrier also does not point to any admissible evidence that the Parties have developed a longstanding practice of interpreting Rule 11.4(b) to apply on the basis of territories first, and then Headquarters.
At best, the Carrier points to one case (PLB 7007, Case No. 14 (Meyers 2009), between BMWE and MBCR, Keolis’s predecessor in interest) that affirms the Carrier’s management right to determine that a Foreman is not required for an overtime assignment; and the relevant Job Descriptions, which show that the Claimant and Mr. Mercado shared one among multiple territories to which they were respectively assigned, to wit “ER-GB.” Neither the Carrier’s discretion to set job qualifications or this Job Description justify the Carrier’s violation of the plain and unambiguous language of Rule 11.4(b), however. As the Board has often noted, its function under Section 3 of the RLA is to apply the Parties’ words as chosen, and it is “constrained” to accord those words their “common or normal meaning”. See BMWE and Burlington Northern Santa Fe (“Suntrup Award”) (Suntrup 1999, unnumbered).
The Carrier may not use its broad but still limited discretion to set scheduling preferences that trump the clear and unambiguous Contract language. See, e.g., Third Division Award No. 2994, BMWE and The Chicago, Rock Island & Pacific Railway Co. (Shake 1945) (citing Award No.3- 2716) (“[w]e are not unmindful that the effect of our conclusion may be to subject the carrier to burdens, and to render more exacting duties of its responsible supervising officials than would otherwise be required; but we find nothing in the Agreement, in the precedents of this Board or in reason that would warrant us in relieving the Carrier of its contractual obligation to respect the valuable seniority rights of the employes, because of such considerations”).
The Board notes that the Carrier did not challenge the Organization’s remedy request in this case, which the Board accordingly sustains as presented. See, e.g., Third Div. Award No. 39670, BMEWD - IBT Rail Conference and Union Pacific Railroad Co. (Zimmerman 2009) (“[b]ecause the Carrier does not dispute
that the Claimant would have been entitled to work the days in question absent his supposed request to leave his assignment early, the claim will be sustained”).
AWARD
Claim sustained.
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 28th day of January 2022.