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' BEFORE PUBLIC LAW BOARD NO. 1837
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
NORFOLK & WESTERN RAILWAY COMPANY
Case No. 123
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier failed and refused to recall
furloughed Section Laborer J. A. Haynes and instead assigned Crane Operator M.
Sutton to work as a groundman assisting a burro crane operator on January 12
through 16, 1998. (Carrier File MW-FTW-98-020-LM-134.)
2. The Agreement was further violated when the Carrier failed and refused to recall
furloughed Section Laborer J. A. Haynes and instead assigned Crane Operator M.
Sutton to assist Campbellstown Section Foreman J. May patrolling track and
making various track repairs on January 5, 6, 7, 8, and 9, 1998. (Carrier File
MW-FTW-98-021.)
3. As a result of the violation in Part 1 above, Mr. J. A. Haynes shall be
compensated at the applicable section laborer's straight time and/or time and one
half rate of pay for all straight time and overtime hours worked by Crane Operator
Sutton on January 12 through 16, 1998.
4. As a result of the violation in Part 2 above, Mr. J. A. Haynes shall be
compensated at the applicable section laborer's straight time and/or time and one
half rate of pay for all straight time and overtime hours worked by Crane Operator
Sutton on January 5, 6, 7, 8, and 9, 1998.
FINDINGS:
Claimant J. A. Haynes, a Hamilton District section laborer, was on furlough status at the
time of these claims.
On February 27, 1998, the Organization filed two claims on behalf of the Claimant.
These claims sought payment at the section laborer's straight time and overtime rate of pay for
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113'7 AWD 123
any and all hours worked by one M. Sutton between January 5 through January 9, 1998, and the
period January 12 through 16, 1998, when the Carrier used assigned crane operator M. Sutton to
perform the work of a Hamilton District section laborer in assisting assigned Campbellstown
section foreman Jamie May in patrolling track and making track repairs, as well as working as a
ground man in assisting a burro crane operator at various locations on the Hamilton District, and
failed to use furloughed Claimant to perform the work in question. The Organization contends
that the Carrier violated the provisions of the effective working agreement dated February 1,
1951, specifically Rules 1-(A) and (B), 11, and 14 (a-d), and that the Claimant was qualified,
available, and entitled to perform the work by virtue of his established seniority.
The Carrier denied the claims on the grounds that the work in question was consistent
with crane operator work, that it was of a short-term temporary nature, and that there was not
sufficient time to recall the Claimant to perform the unexpected work. The Carrier argues that it
complied with the provisions of Rule 14 and that there is no express agreement language or
documented practice of reserving the work in question to section laborers. In addition, the
Carrier contends that for the period January 6, 7, and 9, 1998, the Claimant was off due to
bereavement leave on account of his brother's death.
The parties being unable to resolve the issues, this matter came before this Board.
This Board has reviewed the record in this case, and we find that the Organization has
failed to meet its burden of proof that the Carrier violated the agreement when it did not recall
furloughed section laborer J. A. Haynes and, instead, assigned another crane operator to perform
the work in question. The scope and classification rules of the agreement are general in nature
and do not reserve the specific tasks involved in this case to any particular classification. There
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Aw®123
is nothing in the applicable agreement which reserves the work to any classification or to the
Claimant. The record is clear that the disputed work has been performed by other than section
laborers.
This Board finds that the work of assisting the burro crane was not work which
exclusively accrued to the section laborer classification either by the agreement language or
system-wide, exclusive past practice. Consequently, the Organization has failed to meet its
burden of proof in this case, and the claim must be denied.
AWARD:
The claim is denied.
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