BEFORE PUBLIC LAW BOARD NO. 1837
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
NORFOLK & WESTERN RAILWAY COMPANY
Case No. 59
Dispute - Claim of the Syster
Committee tha
 
  
  The Agreement was violated when the Carrier, on October 20 and 21, 1987, assigned Wheeling and Lake Erie Agreement Section Foreman A. Cruz, Assistant Section Foreman, R.M. Shubrowsky, Trackman-Truck Driver J.D. Riedel, and Trackman R. James and R. Saleem to perform track repairs at Atlas Ledeir in Cleveland, Ohio on territory covered by the Nickel Plate Agreement (File MW-BUE-87-28)
 
  As a consequence of the aforesaid violation, Nickel Plate Agreement Section Foreman A.T. Johnson, Trackman-Truck Driver D.M. Gates and Trackman W.L. Davis shall each be allowed pay for an equal proportionate share of the total man-hours expended by the Wheeling and Lake Erie Agreement employes performing the work referred to in Part (1) above.
 
Findings:
Claimant A.T. Johnson has established and holds seniority as a section foreman. Claimant D.M. Gates has established and holds seniority as a section foreman. Claimant W.L. Davis has established and holds seniority as a trackman. On October 20 and 21, 1987, the Carrier assigned five employes who had established and held seniority under the Wheeling and Lake Erie Agreement but held no seniority whatsoever under the Nickel Plate Agreement, to perform track repairs at Atlas Ledeier in Cleveland, Ohio. They expended eighty (80) man-hours performing the track work in question.
 
The Organization asserts that Claimants were fully qualified and readily available to perform the work in question had the Carrier afforded them an opportunity to do so. The Organization contends that Carrier deprived Claimants of the opportunity to perform work to which they were entitled pursuant to their seniority under the Agreement.

 
1
  40.4.4   637
  The Carrier contends :hat the Organization has failed to meet its burden of proof that a violation occurred. In addition, the Carrier argues that the Organization's claim is excessive and constitutes a penalty.
 
  This Board has thoroughly reviewed the record in this case and we find that the Organization has met its burden of proof that the Claimants had established and held the appropriate seniority for the assignments in question and that the carrier wrongfully assigned six employes who had established and held seniority on the former Wabash territory but held no seniority whatsoever under the Nickel Plate Agreement, to operate brush cutters on the Clover Leaf District.
 
  The Agreement clearly states in Rule I that:
  "seniority will be restricted to seniority districts as hereinafter provided, on which seniority has been established."
 
  The Record reveals that the Claimants were fully qualified and available to perform the work. Although the Carrier contests their availability, contending that they were working on assignments elsewhere, this 3card finds that since those assignments had been made by the carrier the Claimants are still to be considered available. As the Third Division stated in Award 13832:
 
  "The fact is that Claimants were working where Carrier has assigned them, hence were not only available but Carrier was then availing itself of them. If they were not available at the time and place where the extra work was to be done, it was because Carrier chose not to assign them there." (See, also Third Division Awards 19324 and 25964).
 
  With respect to the Carrier's argument that granting the claim would be considered a penalty or somehow excessive, this Board states that in numerous awards the Divisions and various Boards have held that awarding the pay for rule violations of this kind is appropriate
 
  since the Claimants were, n essence, denied the work.
2
  Picture
 
  Award
Picturer.anization Memoe
3-0E3- fo
Date:
Claim sustained.
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LABOR MEMBER'S RESPONSE to
CARRIER MEMBER'S DISSENT on
AWARDS 59b; 60, 62 and 63 of
PUBLIC LAW BOARD NO. 1837

Apparently, to emphasize its displeasure with several well reasoned Awards of Public Law Board No. 1837, the Carrier Member added comment to each signature page of Awards 59, 60, and 62 and then reiterated its position concerning the merits as further dissent to Award 63. Suffice it so say that those arguments were not persuasive at the initial hearing nor the subsequent executive session. The only "distortion" involved in these claims was Carrier's refusal to follow the Agreement and the numerous prior Awards on this property involving the same vinlation.
 
Moreover, there was no penalty payment involved here as Carrier suggests. There is ample precedent for payment for an Agreement violation and in this instance where there are already several Awards on the issue, payment plus interest should have been awarded. Even assuming arguendo that the Claimants suffered no monetary loss, there is also ample precedent for a monetary Award to protect the integrity of the Agreement.
 
These Awards are logical and are precedential since they follow the long line of precedent already established on this property.


 
  Picture
 
BEFORE PUBLIC LAW OARD NO. 1837
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
NORFOLK & WESTERN RAILWAY COMPANY
Case Na. 60
Dispute - Claim of the System Committee that:
  The Carrier 7iolated the Agreement when it assigned Wabash Agreement employes R. Odle, S. Thompson, M. Lockhart, L. Johnson, J. Bradburn and J. Barr to operate brush cutters on the Cloverleaf District (which is Nickel Plate Agreement territory) beginning September 28, 1987 (File MW-MUN-87-27)
  As a consequence of the aforesaid violation, Nickel Plate Agreement Brush Cutter Operations R.A. Hicks, Jr., O.D. Powell, Jr., J.D. Carter, F.E. McFarling, J.L. Crossland and J.W. Hall shall each be allowed cay:
 
  "for all straight time and overtime hours worked by the employes covered under Scope of the Wabash Agreement beginning September 28, 1987, up to the date the Wabash employes were released to return to their territory. We further request that R.A. Hicks, .7r. and J.D. Carter be placed on the Brush Cutter Operator's Seniority roster."
 
Findings:
Claimants were employed by Carrier and had all established and held seniority in their respective classes. Beginning on September 28, 1987, the Carrier assigned six employes who had established and held seniority on the former Wabash territory but held no seniority whatsoever under the Nickel Plate Agreement, to operate brush cutters on the Cloverleaf District.
 
The Organization asserts that Claimants were fully qualified and readily available to perform the work in question and that Carrier deprived Claimants of the opportunity to perform work to which the were entitled pursuant to their seniority under the Agreement. The claim was denied and has resulted in the dispute being placed before this Board.

 
1
  ALQ 0   7
  The claim was denied and has resulted in the dispute being placed before this Board.
 
  The Carrier contends that the Organization has failed to meet its burden of proof that a violation occurred. In addition, the Carrier argues that the Organization's claim is excessive and constitutes a penalty.
 
  This Board has thoroughly reviewed the Record in this case and we find that the Organization has met its burden of proof that the claimants had established and held the appropriate seniority for the assignments in question and that the carrier wrongfully assigned five employes who held seniority under the W & LE Agreement, but no seniority under the Nickel ?late Agreement to perform the track work in Cleveland, Ohio.
 
  The agreement clearly states in Rule I that:
  "seniority will be restricted to the seniority districts, as hereinafter provided, on which seniority has been established."
 
  The Record reveals that the claimants were fully qualified and available to perform the work. Although the carrier contests their availability, contending that they were working on assignments elsewhere, this Board finds that since those assignments had been made by the Carrier the claimants are still to be considered available. As the Third Division stated in Award 13832:
 
  "The fact is that Claimants were working where Carrier has assigned them, hence were not only available but Carrier was then availing itself of them. If they were not available at the time and place where the extra work was to be done, it was because Carrier chose not to assign them there." (See, also Third Division
 
  Awards 19324 and 25964).
  With respect to the Carrier's argument that granting the claim would be considered a penalty or somehow excessive, this Board states

 
2
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  that in numerous awards the Divisions and various Boards have held
  that awarding the pay for rule violations of this kind is appropriate since the Claimants were, in essence, denied the work.
 
  Award
  Claim sustained.
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PictureMembe
0 ganization Memb
Date:
3
LABOR MEMBER'S RESPONSE to
CARRIER MEMBER'S DISSENT on
AWARDS 59 60, 62 and 63 of
PUBLIC LAW BOARD NO. 1837

Apparently, to emphasize its displeasure with several well reasoned Awards of Public Law Board No. 1837, the Carrier Member added comment to each signature page of Awards 59, 60, and 62 and then reiterated its position concerning the merits as further dissent to Award 63. Suffice it so say that those arguments were not persuasive at the initial hearing nor the subsequent executive session. The only "cistortion" involved in these claims was Carrier's refusal to follow the Agreement and the numerous prior Awards on this property involving the same violation.
 
Moreover, there was no penalty payment involved here as Carrier suggests. There is ample precedent for payment for an Agreement violation and in this instance where there are already several Awards on the issue, payment plus interest should have been awarded. Even assuming arguendo that the Claimants suffered no monetary loss, there is also =pie precedent for a monetary Award to protect the integrity of the Agreement.
These Awards are logical and are precedential since they follow the long line of precedent already established on this property.
 
 

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