PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
 Brotherhood that

 1. The Carrier assigned work week of Terminal) Gang Q-073 Saturdays and Sundays

 Thursday through Mond rest days (System File

 2. As a conseq members of Gang Q-073 Jr., 8 . Rodriquez, shall each b® allowe straight time rates a performed on Saturday, of sixteen (16) hours

 hours of pay at thei Tuesday, March 30 and
 Almaguer, B.L. Brown,
 M.A. Valdez and J.A.
 hours of pay at the
 Saturday, March 27 an
 OPINION OF BOARD:
 Division Superintend

 that certain to Carrier's

 Chairman assigned

 Marsh 15, 1982. Esse week of Thursday to M instead of Monday thr

 Sunday, for the affect

 BLIC LAW BOARD NO. 4104



vs.

Burlington Northern Railroad Company


"Claim of this System Committee of the

 a

 r

violated the agreement when it changed the Ottawa Seniority Sub-district $3 (Galesburg rom a Monday through Friday work week with designated as rest days to a work week of


with Tuesdays and Wednesdays designated as s 3 Gr MWA 82-8-3T and 3 Gr MWA 82-8-3A).


ence of the aforementioned violation, the (Messrs. G. Adwell, L. Johnson, J. White, _ Puffinbugor, W. Johnston and F. Jacgor) the difference between their respective d time and one-half rates of pay for work March 27 and Sunday, March 28, 1982, a total and they shall each ba allowed sixteen (16)


respective straight time rates of pay for Wednesday, March 31, 1982 and Messrs. R.G. A. Ceervantz, S. Arguello, W.E. Mitchell, Garcia shall oath ba allowed sixteen (16) r respective time and one-half rates for


Sunday, March 28, 1982."

letter dated February 19 1982, Carrier nt notified the organization's General


changes in the work weak of Gang Q-073 alesburg Terminal would be made, effective d ally, the change would result in a work nday with rest days of Monday and Tuesday, ugh Friday with rest days of Saturday and


t d employees.
Caac No. 9,10 and 11 imely protested Carrier's proposed change. otast. Thereafter, the claim was handled the property. It is now before this Board

 The Organization carrier rejected the in the usual manner on for adjudication.

 The Organization 24 of the Agreement. rest days of Saturday position can be "re Organizations view,

 met for over asserts, are

 changed work

 20 years there an

 week. A

 claim should be susta

 Carrier, on the Agreement bars it £r argues, it has the un

 a single section at i

 no language in any rule

 making this change.

 Similarly, Carrie it required Gang a-073 other Gangs continued this contention, carrie a staggered week. In f be performed on Saturda some gang be assigned

ontends that carrier's action violates Rule t points out that this provision mandates


and Sunday where the duties of the disputed a onably met in five (5) days." In the t e duties of its forces have bean reasonably


without the staggered work weak. Nor, it operational requirements which require x


s such, the organization maintains that the

 i ad in its entirety.

ther hand, contends that nothing in the o making the disputed changes. First, it f tiered right to combine four sections into


t Galesburg Terminal. As Carrier seas it,

 e cited by the Organization prevents it from

insists, 3t did not violate Rule 24 whop to work a,Thursday-Monday work week, while n a Monday-Friday schedule. In support of insists that its operational needs require ct, it notes, Maintenance of Way work must s and Sundays. Thereby necessitating that work on those days.

q104 -

0(110.-11

Carrier acknowl®dgo was performed on a atrai overtime basis on Saturd this history simply demo and not that the overtim the future.


Finally, Carrier ur Organization's claim is s relief requested would a Thus, and for the forego denied in their entirety.


After careful revie

 in cases 9,10 and 11 mu

 that for well over 20 y worked the traditional

Sundays off. While repai on an overtime basis.


Given this history, demonstrating the eziste require a staggered work accordance with ...operat off of Saturday and Sund over 20 years "operatio staggered work week and t cases. Carrier simply fa


that in the peat maintenance of Way work

 ght time basis Monday-Friday and on an y and Sunday. However, Carrier insists,

 strates the need for a staggered work weak excesses o£ the past must be continued in

 es that no damages are due even if the stained. Specifically, it asserts that the

 ount to double or triple penalty paymentx. q reasons, Carrier askx that the claims be

 o

 w of the record, we are convinced that claims

 t be sustained in part. It ix undisputed rs gangs at the Galesburg Terminal have nday-Friday work week with Saturdays and

 work was done on those days, it was only

 Carrier has not met its burden o£ ce of operational requirement which would week. Rule 24 permits a staggered work "in oval requirements." It also requires days y "so far as practicable." Clearly, for al requirements" did not necessitate a e Carrier has not shown otharwixo in these lad to mast this burden.
 qt Oq
 Case No. 9,10,11

 Finally, we note Ca

would amount to a double of Gang Q-073 (Claimants


Rodriguez, L. puffinbug compensated at eight (8)

 Tuesday, March 30 and We the overtime rate of pay
 1982.

Also, Claimants R.G Arguello, W.E. Mitchell, employees who lost the o a result, those employee straight time rate of pa 1982. Accordingly, the


in the Opinion.
o

 d

 rier's contention that the relief sought r triple penalty. Therefore, the members G. Adwell, L. Johnson, J. White, Jr., S. , W. Johnston and F. Jaeger) shall not be hours o£ pay at the straight time rate for ecday, March 31, 1482, but will be allowed for Saturday March 27 and Sunday March 28.

 Almaguer, B.L. Brown, A.

 M.A Valdez and J.A. Garcia are senior portunity to work Saturday and Sunday. As shall be paid eight (8) hours at the for Saturday March 27 and Sunday March 28, laim is sustained to the extent indicated

 Cervantez, S.



FINDINGS: That Public Law Hoard No. 4104 upon the whole record and all of the evidence, find and holds:
 That the Carrier an the Employees involved in this dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act as approved Jun 21, 1934.:
 That the Public Law Board No. 4104 has the jurisdiction over the dispute involved herein: and
 That the Agreement was violated. AWARD: Claim sustained t the extent indicated in the Opinion.

 P. Swanson, Employe Membe E. Kallinen, Carrier Member
 (Di ffe.. fi' a_ f"~' 1 c ,ts i~/)

              Martin' F. cheinman, Neutral Member


4t~nv~sr G~ l'1,~

CARRIER'S DISSENT

TOTH E AWARD IN CASES

9, 10, AND 11 OF PUBLIC LAW

BOARD 4104


While arbitrators in the railroad industry generally have considerable latitude in interpreting collective bargaining agreements, there are limits to that latitude which, if exceeded, render the arbitrator's decision null and void, without precedential force. The Arbitrator's decision in the instant cases, we submit, far exceeds the bounds of his legitimate jurisdiction because it manifests a clear disregard forthe parties' collective bargaining agreement. Accordingly, it should be treated as a nullity, without precedential value. We intend to so treat it and submit that others should do the same.

 The evidence of record in these cases is clear. There was a bona fide need to have maintenance of way services performed at Galesburg terminal on Saturdays and Sundays, just as there was the other five days of the week. The Organization at no time denied or otherwise challenged this fact. Neither does the Arbitrator's opinion deny or take issue with this fact; on the contrary, it explicitly acknowledges as much by stating, ". . . While repair work was done on those days [Saturday and Sunday], it was only on an overtime basis."

    The amount of work done at Galesburg terminal on Saturdays and _ '.ays was

not insignificant. As established by the evidence submitted durir the h ndl q, of
 the claim on the property (which evidence was never rebuttgd,or otherwise
 contested by the Organization), during the 12-month perio,~_`ilnm~ djately preceding
 ct~ e
                                              r·.

. ~-/I~U-W nod. (l

 the effective date of the change to the staggered workweeks, the four section crews employed there worked a total of 3148 man hours on Saturdays and Sundays. Carrier's Exhibit 15, p. 5. This equated to approximately four employees each working 16 hours (8 hours on Saturday and 8 hours on Sunday) each of the 52 weekends during the course of the year.

    The need to have the track maintenance work done at Galesburg on weekends -

was, in and of itself, sufficient justification for Carrier's decision to establish regular,
 staggered five-day assignments to do the work. Having that work done on an
 overtime basis, as in the past, was no longer acceptable, for in addition to being a
 more costly procedure, there was the increasingly difficult problem of finding the
 required number of workers who were available and willing to work on their rest
 days. This problem was addressed during the handling of the claim on the property
 by Galesburg Terminal Roadmaster E. R. Miller:

 °. . . Having a regular crew with regular work days of Saturday and Sunday guarantees us of a full crew to correct problems and perform needed maintenance, instead of calling through the entire roster of employees assigned the maintenance of way department on their rest days, and at most getting one or two men, and not a full crew, to report for repair problems that arise." Carrier's Exhibit 18, p. 2. The Organization at no time contested the fact that rounding up sufficient workers to report for overtime duty on weekends at Galesburg had become a problem. It merely continued to insist that the weekend work should be done on an overtime basis because that's the way it had been done in the past.

 Unfortunately, the history of having the weekend maintenance of way work done at Galesburg on an overtime basis was also viewed by the Arbitrator to be of great import. It should not have been. It should have been of no import whatsoever

                          2

- 4104-a~ 1~ f t l

 because it is totally irrelevant and immaterial to the issue of whether, under Rule 24, the change to staggered work weeks was proper. Under Rule 24, the "operational requirement" of having the need to have maintenance work done there on Saturdays and Sundays, as well as the other five days of the week, was all that was
 required in order for the Carrier to make the desired changes. A seven-day position -
 existed within the meaning of Rule 24, and Rule 24E provides in such cases for the
 staggering of regular, five-day assignments over the seven-day span:
      "E. Seven-day Positions -


      "On Positions [services, duties or operations necessary to be performed] which are filled seven (7) days per week any (2)consecutive days maX be the rest days with the presumption in favor of Satur ay an Sunday." asis added).


Three of the four section crews assigned to fill the seven-day position at Galesburg had Saturday and Sunday rest days. It was not practical to have the fourth crew with those same rest days. Indeed, since someone was needed to fill the position on those days, it was impossible to have everyone off on rest.

 Aside from the fact that nothing in Rule 24 prohibits the Carrier from staggering regular, five-day assignments to fill seven-day positions (services, duties or operations necessary to be performed) even if it has at some time in the past protected such positions on Saturday and Sunday by calling employees to work on an overtime basis, the authorities have consistently recognized that such overtime practices are no bar to future use of staggered assignments even whenthe avoidance of overtime costs is a reason for doing so. Three awards directly on point on this issue were cited to the Arbitrator in this case: NRAB Third Division Award 21394, BRS v. TP (Wallace); Award 80 of Public Law Board 2960, BMWE v. C&NW (Vernon); and

                          3

'- Ll104 -9,(6)"_11
NRAB Second Division Award 10383, BRC v. BN (Meyers). The first of these awards, Third Division Award 21394, held as follows on the issue:

      "Lastly, the Brotherhood's submission argues that the sole purpose Carrier had in establishing the new position was to have seven day coverage at the pro rata rate of pay and eliminate holidays that fall on Monday on the position. It is sufficient'to point out that Carrier's position on the property negativesthis. Moreover, we cannot agree that the purpose of avoiding a penalty rate of itself invalidates staggering. The Carrier cites an impressive array of awards to this effect; we cite only: Awards 13365 (Moore) and 15463 (Ives)." (Emphasis added).


The Arbitrator in the instant cases took the easy way out and chose notto deal with this line of awards. He did not even acknowledge them, to say nothing of attempting to distinguish them. This failure to wrestle with strong, direct precedent only serves to underscore the lack of precedential value of the instant award.

 As for the issue of damages, it is noted that the Arbitrator's decision in Cases 2 and 3 of this Board, which involve facts and issues similar to those presented in the instant cases, and which was issued simultaneously with the decision here, the following statement appears:

      "The issues raised in this claim are virtual identical to those in Case Nos. 9, 10 and 11, decided herewith. However, while these claims were sustained, there is no basis for awarding any monetary damages in Case Nos. 2 and 3. These cases involved essentially a change in work week, but not claims which would result in monetary payments. Moreover, Carrier should not be required to pay damages because Claimants in this dispute voluntarily bid on the staggered assignments and as the senior bidders, Carrier was obligated to award them the assignments at issue. Given these factors, this Board shall sustain the claim as it pertains to the issue of postings but shall not order any monetary compensation." (Emphasis added).


                            4

                                              yo4- 9.mf.ll


Simi larfacts existed in the instant case. The Claimants listed in parts 2 and 3 of the Statement of Claim bid on the staggered assignments in question and, by virtue of their seniority, were awarded them. There is no dispute about this. The Arbitrator, however, for reasons not divulged, departs from his reasoning in Cases 2 and 3 and awards monetary damages to the Claimants here. Further palpable error is thus committed.

                                  Respectfully submitted, -


                                  E. J. allinen, Carrier Member


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