The Board, after hearing upon the whole record and all the evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended; this Board has jurisdiction over the dispute involved herein; and, the parties were given due notice of hearing thereon.
The dispute at issue involves argument much the same as that presented by the parties in Case No. 76 (Award No. 76) involving the Carrier abolishment of Work Equipment Repairmen assignments with a Monday through Friday work week, and rest days of Saturday and Sunday, and thereafter advertising new positions of Work Equipment Repairmen at Waterville, ME with, as in the instant claim, a work week of Sunday through Thursday, with rest days of Friday and Saturday, or the assignments to which the Claimants had bid.
Case No. 76 involved a claim that a senior employee was being deprived of a call for overtime work on a Saturday as a result of another employee, who happened to be junior in seniority, working on that referenced Saturday at the straight time rate of
pay as a part of one of the newly assigned Work Equipment Repairmen positions that then had a work week of Tuesday through Saturday, with rest days of Sunday and Monday.
The instant dispute involves a claim for the monetary difference between the Work Equipment Repairman straight time rate of pay and the overtime rate of pay for the two Claimants working on the three listed Sundays in a further protest that the Carrier violated Article 9.2 and Article 10 of the current rules Agreement when it abolished Work Equipment Repairmen that had a Monday to Friday work week, with rest days of Saturday and Sunday.
There is no question, in the opinion of the Board, that the Carrier had the right to change the assigned work weeks and rest days of the positions at issue as a result of changed operational needs, as held by the Board in the Findings of Case No. 76. It therefore follows that in posting the newly created assignments to which Claimants had bid clearly required them to work on Sundays at the straight time rate of pay as a part of their assigned scheduled Sunday through Thursday work week pursuant to the rules of Agreement.
In overall study of the arguments of both parties the Board finds no reason to depart from the Findings it set forth in review of Case No. 76. Accordingly, the instant claim for the difference between the straight time rate of pay and the overtime rate of pay for Claimants working on the three Sunday dates as issue will be denied for essentially the same rationale that the Board held in denying the claim in Award No. 76.
Kevin D. Evanski
Organization Member
Consequently, the following dissent refers to the correspondence surrounding Award 76 of PLB No. 5606, but should be applied with full force to Award 76, 80 and 81 of PLB No. 5606.
The problem with the above-quoted findings is that none of the Carrier's track, tie, rail, or surfacing crews were working Saturday and Sunday. Even more baffling, and notwithstanding the fact the Carrier's assignment of track, tie, surfacing and rail crews to Saturday and Sunday work does not create an operational necessity that cannot be met by the work equipment repairmen Monday through Friday, nowhere was it even asserted by the Carrier that its track, tie, surfacing or rail crews were working Saturdays and Sundays. The Carrier's September 7, 2010 denial letter did assert the following:
The above-quoted statement is the only reference to seven (7) days a week during the entire handling of this case. To reach a finding that the above-cited Carrier contention is an assertion that the track, tie, surfacing and rail crews were working Saturday and Sunday simply boggles the mind. It clearly states that the Carrier Managers wanted the Work Equipment Department running seven (7) days a week in order to fix track equipment, but it absolutely does not state that the track, tie, surfacing or rail crews were working Saturdays and Sundays, or that the track equipment for the rail, tie and surfacing jobs were working seven (7) days a week. The Carrier's denial does Labor Member's Dissent
Kevin D. Evanski
Employe Member
Although I believe the majority findings and award speak for itself, there are certain statements in the labor member's dissent which should not go unanswered.
The dissent states: "While the majority correctly stated that the Carrier must show an operational necessity for changing the assigned rest days of five (5) day positions, it incorrectly determined the Award's ultimate Findings based on facts not established in the record." The dissent then goes on to say: "The problem with the above quoted findings [of the majority members] is that none of the Carrier track, tie, rail, or surfacing crews were working Saturday and Sunday."
If the Organization had reason to question statements in the Carrier letter of September 7, 2010 to the General Chairman of the Organization from the Personnel Officer for the Engineering and Mechanical Department that due to the workload being high that year it needed to have its Work Equipment Department running seven days a week, or the Organization had probative support that the Carrier's track, tie, rail, or surfacing crews were not in fact working seven (7) days per week, it was incumbent upon the Organization to have expressed such argument during the handling of the claim on the property. The Organization did not do so. Nor did it even seek to do so in written or oral argument to the Board. The Organization may not therefore be heard, for the first time, to put forth such unsubstantiated argument in an attempt to buttress its contention that the decision of the majority is fundamentally flawed.
As the Organization stated in its ex parte submission to the Board in directing attention to the following excerpt from Award No. 73 of this PLB 5606 that proof must be beyond mere statements and allegations: "Numerous times in awards of boards of adjustment it has been held that mere assertion, self-serving declarations, and general statements are of no real probative value in consideration of a dispute."