NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4370
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD NO. 22
Case No. 23
STATEMENT OF CLAIM
1. The Carrier violated-=the
terms
of the
current Agreement when it failed tocall and
assign overtime work to Section Foreman Roger
L. kidenhour and instead assigned such overtime _
to Junior Trackman Mr. C. E. Criddle.
2. The Carrier shall now be required to
compensate Claimant at his overtime rate ofpay,
in the amount equal to that worked by Junior employe
Criddle.
F I N D I N G S
On May 1-6, 1989, the Carrier appointed a Laborer to
relieve the district Track Supervisor, an exempt position.
One of the duties- of the Track Supervisor is to inspect track,
and this work was performed by the employee temporarily'
appointed to the position. - -
Aftt
PLB No. 4370
Award No. 22
Page 2
The Claimant is a Foreman, senior in Foreman status
to the employee selected to
relieve the
Supervisor. The
Organization supports the Claimant's view that he should have
been assigned
the overtime hours
worked by the Laborer during
the period he relieved on the Track Supervisor position.
The Board finds no basis to support the Organization's
position. The Scope Rule, Rule 1, specifically provides that
the
"agreement shall
not apply to . . . supervisory forces
above the rank of Foreman". No rule or practice was cited
which inhibits the Carrier from selecting whom it chooses
to perform exempt work. No allegation is made that the selected
employee performed
other than
the work of Track Supervisor.
The fact
that the selected employee is represented by the
BMWE (and thus covered by the agreement in his regular assignment) do=es nothing to make him ineligible for selection for
exempt work
. The Claimant is without standing to exercise
his seniority in
reference to
an exempt position.
As a procedural matter, the Carrier -argues that the
claimshould be time barred, since an identical matter was
raised at an earlier time and not progressed to the Board.
The claim
here, however,
refers to a specific time (May 1-6,
1989) and the claim in
reference thereto was
filed within
PLB No. 4370
Award No. 22
Page -3
60 -days. A previously abandoned claim does not prevent the
initiation of.another claim under new-circumstances,..although
the settlement of the earlier claim may have precedentialvalue as to the merits.
A W A R D
Claim denied.
HERBERT L. MARX, JR., Chairman and Neutral Member
r f
G'
C. F. FOOSE, Employee Member
R. SCHNEIDER, Carrier Member
NEW YORK, NY
DATED: