- PUBLIC LAW BOARD NUMBER 3932
- Award Number: 1
Case Number: 1
PARTIES TO DISPUTE
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK)
STATEMENT OF CLAIM
"This claim is on behalf of Mr. R. Liszewski for time
made by G. Brown.
On Friday, March 16, 1984, Mr. Brown was used to travel
a burro crane from QX yard to Paoli from 3:30 P.M. to
5:30 P.M. On Saturday, March 17, 1984, Mr. Brown
operated the burro crane to replace a switch point and
stock rail in Paoli interlocking and traveled the crane
back to QX yard.
As I explained to you in our phone conversation on
Friday morning, this work was done in the Philadelphia
work zone and accrues to the Philadelphia Division gang
before the gang located in Downingtown.
In light of this violation of Rules 14 and 55, I am
claiming a total of 8 hours at time and one-half."
FINDINGS
Claimant, at the time of the dispute in question, was
employed as a burro crane operator at Carrier's Philadelphia
Division. By letter dated March 28, 1984, the Organization filed
claim on behalf of Claimant seeking compensation on the grounds
that Carrier improperly allowed another employee to perform
service that Claimant was entitled to perform under the
Agreement.
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The issue to be decided in this dispute is whether Claimant
-was entitled under the Agreement to perform the work at issue.
The Organization contends that Carrier violated Rules 14 and
55 of the Agreement by allowing a non-Philadelphia Division (zone
4) employee to perform service within the zone 4 area.
Initially, the Organization cites Rule 14, covering "Working
Zones", to support its position that Carrier is obligated to
assign work on the basis of those zones. Specifically, the
Organization-cites Section C of Rule 14 which provides that
"Normal maintenance work for track department and Bridge and
Building Department will be advertised to the working zone..."
The organization argues that absent specific circumstances (i.e.
work assigned to Rule 89 or 90 District Gangs), Carrier cannot
take work assigned to one zone and transfer it to another zone,
and alleges that no such circumstances exist in the present case.
The Organization further argues that Rule 79, cited by
Carrier, has no application to the facts in this case. The
Organization alleges that Rule 79 is designed to cover emergency
situations during which Carrier is forced to use employees
outside of their regular zones, which the organization contends
did not exist in the present case. The Organization further
asserts that Rule 79 is merely a "pay" rule and has no relevance
to issues of seniority or work zones, and cites awards to support
its allegation. The Organization additionally argues that
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PLB 3932 - Award No. 1
Carrier's assertion that it may require an employee to perform
'service in another zone if that service constitutes overtime
lacks any contractual support. The Organization maintains that
Carrier has failed to establish any right under the Agreement to
require such service, and that other provisions of the Agreement
clearly prohibit Carrier's right to do so.
The position of the Carrier is that it acted within its
rights under the Agreement when it allowed a zone 2 employee to
perform service in zone 4 on March 16 and 17, 1984.
initially, Carrier denies that Rule 55, concerning overtime,
was violated on the dates in question. Carrier alleges that the
overtime assignment on March 16, 1984 was a continuation of the
employee's regular assignment, in accordance with the longstanding application of Rule 55. Carrier further alleges that
the assignment on March 17, 1984 involved work usually performed
by the employee in question, and that therefore Rule 55 was fully
complied with on that date.
Carrier further argues that Rule 14 in no way prohibits it
from allowing an employee to work in a zone other than his
regular zone. Carrier argues that Rule 14 has no applicability
to the present case, since it did not change the parameters of
any work zone or make other changes within the purview of Rule
14. Carrier maintains that Rule 14 deals with work zones and
seniority districts, and argues that the organization's attempt
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to equate those two concepts is completely without merit.
Carrier alleges that only district seniority has relevance
concerning jurisdiction of work, not work zones. Carrier further
alleges that the employee in question had equal seniority to
Claimant within the district, and that therefore he was fully
eligible to perform the work. Finally, Carrier argues that its
only obligation under the Agreement is to ensure that an employee
begins and ends his tour of duty at his designated headquarters,
which the employee in question did on the dates in question.
Carrier maintains that the Agreement allows for cross-zone
service, and cites Rules 41, 63 and 79 to substantiate its
position. Carrier argues that these rules, which outline its
obligations under situations such as that in the present case,
indicate clearly that such service is proper under the Agreement.
Carrier alleges that such service has and continues to be
routinely assigned, and cites the fact that the Penn Coach Yard
Wire Train has often worked off its normal work zone and even off
its normal seniority district. Carrier cites other examples of
cross-zone service previously performed, and argues that this
evidence-establishes the long-standing and legitimate nature of
the service in question.
Finally, Carrier alleges that the Organization's Section 6
Notice filed August 21, 1984 was an effort to change Rule 56 to
prohibit such assignments. Carrier argues that the Section 6
Notice serves as conclusive proof that no prohibition exists in
PLB 3932 - Award No. 1
the Agreement, since otherwise the Organization would have no
motive for the request.
Carrier concludes that the claim should be rejected for lack
of contractual support and because the claim is excessive, in
that Claimant was fully utilized on March 16, 1984.
After review of the record, the Board finds that the
organization's claim must be denied.
In a case such as this, the burden of proof rests with the
Organization to establish that the work in question was reserved
for Claimant under the Agreement. We find that the Organization
has failed to meet that burden in all respects.
Initially, we find that Rule 14 nowhere probhibits Carrier
from using employees in "cross-zone" service. Rule 14 merely
designates the different zones and the advertising of positions
within those zones. The Organization has failed to demonstrate
any language prohibiting Carrier from utilizing employees in
"cross-zone" service. Further, we find that Rule 55 is equally
unsupportive of the Organization's position. That Rule would
only be applicable if it were established that Claimant was
entitled to perform overtime work on the dates in question.
Since we find no such entitlement under other provisions of the
Agreement, Rule 55 lacks applicability to the present dispute.
Contrary to the Organization's position, we find that Carrier has
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3~3a--I
provided substantial evidence concerning past practice to
indicate that "cross-zone" service has been utilized previously
in several areas. Finally, the Organization's Section 6 Notice,
while not dispositive, serves as further probative evidence that
the Agreement presently does not prohibit the type of service
complained of. In sum, the Organization has failed to establish,
through contractual support or evidence of past practice, that
Carrier is prohibited from allowing an employee to work in a zone
other than his designated-zone.
AWAR
Claim denied.
, Z'me
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