PUBLIC LAW BOARD NUMBER 4138
Award Number: 1
Case Number: 1
PARTIES TO DISPUTE
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES -
AND
CS% TRANSPORTATION INC.
STATEMENT OF CLAIM
First: that agreement was violated when the Carrier assigned
the Knoxville Section Gang on the Jena Section Gang territory.
Second: that Claimants C. C, Robertson, D. L. Hammac,
R. F. Leach, J. E. Gaylor and J. B. Ivey be paid eight hours
straight time and two hours overtime at Track Repairman's rate of
pay.
FINDINGS
On November 19, 1985, Carrier formally abolished the Jena, Tennessee
Section Gang, The Claimants, members of that gang, were subsequently
furloughed. In January 1986, the Organization filed claim on behalf of the
Claimants seeking compensation on the basis that Carrier allowed the
Knoxville Section Gang to perform services previously performed by the Jena
Gang.
The issue to be decided in this dispute is whether Carrier was
obligated under the Agreement to use the Claimants to perform the service in
question.
LI i ?8-r
The Organization contends that Carrier violated the Agreement by
unilaterally abolishing the Jena Gang and assigning the work performed by
that gang to the Knoxville Gang. The Organization argues that Carrier is
required by the Scope Rule to negotiate before reassigning work reservedunder the Agreement to other employees. The Organization further argues
that the Agreement required Carrier to use Jena Gang workers to perform the
service in question absent agreement to the contrary.
Carrier contends that the employees who performed the work in question
were senior to the named Claimants and were therefore entitled to perform
that service. Carrier further contends that those employees furloughed due
to the abolishment of the Jena Gang had no subsequent right to perform work
over active employees. Carrier maintains that it has a right to reduce
forces when it deems it necessary, and that it may use other employees to
occasionally perform services previously performed by the furloughed
employees. Carrier argues that under the Organization's position, it would
be impossible to service any area where force reductions had taken place.
Carrier maintains that the Organization has failed to establish that the
occasional work done by active employees constitutes "work remaining",
requiring the retention of the furloughed employees. Carrier further
asserts that nothing in the Agreement prohibits it either from reassigning
work or abolishing work; and that there is therefore no contractual support
for the organization's claim. Finally, Carrier contends that since there
was no vacancy to be filled, there is no basis for the compensation
requested.
2
`038- I
After review of the record, the Board finds that the Organization's
claim must be denied.
The organization has failed, as is its burden, to establish that the
Claimants were entitled under the Agreement to perform the work in question.
The employees who actually performed the work held seniority in that
district and were on active status. We find no evidence, contractual or
otherwise, that the work in question was exclusively reserved for the
Claimants. We further find no evidence that the service performed was of
such a regular nature as-to constitute the creation (or re-creation) of a
position. Nothing in the Agreement prohibits Carrier from using employees
for occasional service in an area where furloughed employees previously
performed the work. Furthermore, nothing in the Agreement prohibits Carrier
from eliminating or abolishing work. We therefore find that Carrier acted
within its managerial discretion in abolishing the Jena Gang and allowing
other employees to perform occasional service in that area.
s
AWARD
Claim denied.
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Neutral Member
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Carrier Member
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zatlon Member
DATE:
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