NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD No. 7163
Brotherhood of Maintenance of Way )
Employes Division, IBT Rail Conference )
)
VS.
} Case No. 114
Award No. 114
CSX Transportation, Inc. )
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
I . The Agreement was violated when the Carrier failed to call and assign
Foreman B. Hendrickson to perform flagging work for a contractor on the
CC Subdivision beginning on August 2, 2010 and continuing through
August 19, 2010 and instead called and assigned junior employe L.
McGuire (System File 6357570
2.
I 0-080444).
As consequence of the violation referred to ire Part (1) above, Claimant B.
Hendrickson shall now be compensated for eight and one-half (8.5)
hours at his respective foreman overtime rate of pay."
[BMWE Submission at 1 ]
Findings:
Public Law Beard Into. 7163. open the whale record and al! the evidence, finds that ( I ) the parties
to this dispute are Carrier and Employes within the meaning of the Railway Labor Act as
amended, {2} the Beard has jurisdiction over this dispute, and {3} the parties to the dispute were
accorded due notice of the hearing and participated in this proceeding.
This claim was timely presented by the Organization and responded to by the Carrier throughout
claim processing including conference. With the unresolved claim handled in the customary and
usual manner, the retard established by the parties is now before the Board far adjudication.
Claimant is assigned to a Foreman position (B&B Department) for Mobile Gang 6C83 in the KD
Seniority District for the Appalachian Region. The claimed-against employee also is assigned to a
Foreman position (B&B Department) an Mobile Gang 6C71 in the same seniority district and
division as the Claimant.
During the period of August 2, 2010 through August !9, 2010 the Carrier assigned a junior
employee to Claimant flag work an an overtime basis at a Carrier-owned bridge an the CC
Subdivision.
The Carrier's assignment of a junior employee, BM WE claims, is a breach of Rules 3, 4, 1 I and
17 and Memorandum of Agreement {MOA} at Section 8, Rule 3, Section 4 because overtime
preference extends to Claimant, the senior employee. Rule 17, Section 2 states that the senior
PLB NO. 7163
AWARD 114
employee in the required job class within the seniority district will be offered and/or called for
overtime work when the work is performed outside the normal tour of duty.
Additionally MOA Section 8, Rule 3, Section 4 provides that when a new or vacant position is
tilled "the senior qualified available employees will be given preference, whether working in a
lower rated position or in the same grade or class pending advertisement and award."
BMWE argues a breach of MOA Rule 3, Section 4 because the Carrier assigned the junior
employee in the Foreman job class to perform lower classified work but compensated the junior
employee at the Foreman rate.
In denying the claim the Carrier states that Rule 17, Section 2 governs this matter. That is,
...the gang ordinarily doing this type of work during the regularly assigned
work period would be given preference for the continuation of this work
outside of the regularly assigned work period with the employees ill the gang
being called in the order of their seniority in the required job class. If other
employees are needed to assist in the work, other production gang employees
within the seniority district will be offere&called in the order of their seniority,
in the reguiredjob class.
[Emphasis added.]
Since there was no Assistant Foreman - Flagman available to continue this work outside of that
employee's regularly assigned work period the Carrier states that it offered the work to "other
production gang employees within the seniority district... in the order of their seniority, in the
required job class" which was the junior employee.
The Board observes that the MOA Section 8 - Flagging Work established the Assistant Foreman
- Flagman class within the B&B Department and the seniority for that class is "based on
Assistant Foreman seniority" in the B&B Department.
The claimed flag work is covered by MOA Section 8 A.2:
When flagging work is required in connection with B&B Department work or
other work that holds the potential to undermine the integrity of structures
such as bridges or buildings an Assistant Foreman - Flagman from the B&B
Department shall be assigned in accordance with Rule 3, Section 3 or 4,
as applicable.
BMWE asserts in the claim that the Carrier's assignment of the junior Foreman to perform flag
duties breached MOA Rule 3 - Selection of Positions, Section 4. Filling temporary vacancies:
(aj A position or vacancy may be tilled temporarily pending assignment.
When new positions or vacancies occur, the senior qualified available employees
will be given preference, whether working in a lower rated position or in the
same grade or class pending advertisement and award[.]
Based on MOA Rule 3, Section 4 BMWE argues that Claimant should have been offered this
temporary vacancy and not the junior employee.
PLB N©. 7163
AWARD 114
3
The Board concludes that the required job class for this required flag work is Assistant Foreman -
Flagman and the junior employee has Assistant Foreman - Flagman seniority and the Claimant
does not purport to have such seniority.
Without Assistant Foreman-Flagman seniority, Claimant was not available when "other
production gang employees within the seniority district [were] ...offered\called in the order of
their seniority in the required job class" leading to the junior employee's assignment. Since the
junior employee has the requisite seniority in tile required job class (Assistant ForemanFlagman), he was properly assigned this overtime work following the criteria in MOA Section 8
and Rule 17.
Award
:
Claim denied.
Patrick
Y
Halter
Neutral Member
PLB No. 7163 Case No. 1 14
Carrier Member
Robert A. Paszta
Organization M(Iffiber
Peter E. Kennedy
Dated this
2
-111?
day of ~~e
