PUBLIC LAW BOARD NO. 4104
Case No. 81
PARTIES TO DISPUTE: Brotherhood of Maintenance of
Way Employees
VS.
Burlington Northern Railroad
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
1. The Agreement was violated when the carrier assigned
System B&B forces to supplant Division B&B forces
in
the
performance of .B&B work in the Denver Terminal Area beginning
December 10, 1986 and continuing (System File ##9 Gr./DMWA 87-4-2).
2. As a consequence of the afore-stated violation:
(a) Furloughed First Class Mechanics W.C. Smith,
R.S. Lorentz, D.T. Stone, R.E. Abbey and M.D.
Williamson shall each be allowed 330.2 hours
pay at their respective straight time rate and
three and one-half (3.5) hours pay at their
respective time and one-half rate. In
addition, they shall each be allowed pay at
their respective rates for an equal
proportionate share of the man-hours expended
by the System B&B force (excluding the Foreman)
performing the afore-described work beginning
February 13, 1987 and continuing.
(b) Cut back District B&B Foreman K. L. Lytle shall
be allowed the difference between what he would
have earned as District B&B Foreman and what
he was paid as a First Class B&B Mechanic for
the 243.2 straight time hours and three and
one-half (3.5) overtime hours worked by the
System B&B Foreman performing the aforedescribed work beginning December 10, 1986
through February 12, 1987. In addition,
Claimant Lytle shall be allowed the difference
between what he would have earned as District
B&B Foreman and what he was paid as a First
Class B&B Mechanic for time worked by the
System B&B Foreman performing the aforedescribed work beginning February 13, 1987 and
continuing.
OPINION OF BOARD: The relevant facts of this case are not in
dispute. In December 1980, Carrier found it necessary to perform
H I a4-8r
work involved in the maintenance and repair of bridge and building
facilities. Accordingly, from December 10, 1986 through February
12, 1987, Carrier assigned Division Bridge -and Building crews to
perform the maintenance and repair work.
The organization maintains that the work in question (on
former CB&Q territory) should have been assigned to employees
holding seniority as Division B&B employees who were either
furloughed or assigned to lower rated positions on account of
force reductions. In its view, carrier's action here violates Rule
6(d) of the former CB&Q Agreement effective September 1, 1949.
That provision reads, in relevant part:
(d) Employees assigned to System Bridge and
Building gangs will have the right to work over the
System and will not be subject to displacement by
employes holding Division --seniority. A System gang will
not be used to supplant a Division gang but may be used
to perform work on a seniority district when no Division
gang with the required -supervision; experience and
personnel is available
on
the seniority district to
perform the work to which such System gang- is to be
assigned.
The Organization points out that the language is clear that
System B&B gangs and Division B&B gangs-may-perform similar work
but that System B&B forces would not supplant Division forces in
the performance of such work. In the organization's view,
Carrier's action has the effect of totally destroying the seniority
rights of the affected Division B&B employees.
Moreover,-the Organization argues that this dispute does not
involve the necessity to show exclusive reservation of work. It
recognizes that the work in question has been performed by System
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B&B forces
as
well as Division B&B forces. The organization
asserts that System B&B forces may perform B&B work on a seniority
district under certain circumstances-, but with a restriction that
System gang will not be used to supplant a Division gang.
For these reasons, then, the organization asks that the claim
be sustained. It seeks 330.2 hours at straight time rates for
First Class Mechanics W.C. Smith, R.S. Lorentz, D.T. Stone, R.E.
Abbey and M.D. Williamson.- In addition, the organization asks that
B&B Foreman K. L. Lytle be allowed the difference between what he
would have earned and what he was paid as a First Class Mechanic
for the 243.2 straight time hours and three and one-half overtime
hours worked
Carrier,
Agreement here.
by the System
B&B
Foreman.
on the other hand
It asserts that
Agreement was not negotiated into
Carrier's view, the restrictions
would be in direct conflict with
restrictive language on the type o or Division B&B crews.
f
denies that it violated the
Rule G(d) of the former CB&Q
the current agreement. In the
contained in former Rule G(d)
the new agreement which has no
work to be performed
by
System
Carrier also insists that for the Organization to prevail here
it must show that the work in question was performed exclusively
by
Division B&B employees. This, it contends, the organization has
not done. Accordingly, Carrier asks that the claim be denied.
After reviewing the record evidence, we are convinced that the
claim must fail. Although the Organization may be correct in its
assertion that Senior Division employees who had been furloughed
should be assigned to such work before junior -employees, there
exists no rule support for such contention. Although the intent
of the parties may had been for such assumption, such language has
not been incorporated into the existing agreement. It is therefore
left to the parties to negotiate such language into the agreement.
Accordingly, and for the foregoing reasons, the claim is denied.
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FINDINGS: The Public Law Board No. 4104 upon the whole record and
all of the evidence, finds and holds:
That the Carrier and the Employes involved in this
dispute are respectively carrier and Employes within the meaning
of the Railway Labor Act as approved June 21, 1934:
That the Public Law Board No. 4104 has the jurisdiction
over the dispute involved herein; and
That the Agreement was not violated.
AWARD: Claim sustained to the extent indicated in this opinion.
P. 6wansori, Employe a E. Kallfrf'en, Carrier Member
Ma~rtir,T
Fl
Scheinman, Esq., Neutral Member
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