Award No. 1 Case No, 1

PUBLIC I.AW 3CARy vi2, W7

PARTIES United Transportation Union

D1SP _ _ p

The Atchison. Topeka cQc Santa Fe Railway Company

STATEMENT OF CLAIM:

ftecf:test in behalf of Needles Conductor, D. R. Kelley, for payment of earnings deprived made by Pool 6313, because of oat being called in engine service in accordance with the October 31, IM National Agreement beginning an July 3rd and continuing until August 5. 1991.

FINDINGS
Upon the whole record, after hearing, the Board finds that the gartit;s heroin are Carrier and Employees within the meshing of the Railway Labor Act, as amended, and that this Board is duly constituted under Public Law89-456 and has jurisdiction of the parties and the subject matter.
2
PG.,Cs' IUD . 5yn 7 -A..P.o

At the outset. it Should he made bear that the Brotherhood of Locomotive

Engineers was made aware of the pendency of this dispute and offered the

right to participate as a third party interest. That Organization determined

that it would indeed participate and submitted a pre-hearing brief, as veil ;Ls participated in the hearing itself.

The critical elements in tills dispute are that on July 3, 1991, the Claimant herein. a Conductor, was recalled t» engirt service with as engineer seniority date of Butte 8. 1990. Another emplayee, Conductor Collins, bad an engineer

settiarity date of Cttmbcr 31,. 1999. The occurrence was Claimant was force

assign to engine service while Conductor Collin% cards permitted to remain in i

train service. It is Claimant's belief shat rte should not have been (arced to

take up the enginetr`S posidon, as long as Conductor Collins remained in

train service. Claimant believes that he lust sttbstaatiai earnings as a remit

of this improper forced assignment It is relevant to know that theca woe no

standing bids at the time. The thrust of the claim was that alts claimant was

able to hold an assignment in engine service as art engineer, and therefore

had to taste this assignment. which he perceived was inferior to the trainrslan's

position* which Conductor Cnliios, who was his junior, was working.

Pea iuO . 5yn7 -a.w ,uJ. / 3

Arrtnng other races relied upon by Petitioner mss Section 3(3) of Article VIN o£ Article XI1L of the October 38, 19&5 National Agreement. which reads in relevant part as fellows:

(3) An employee who bas established seniority as

conductor (faxamanl, trainman (bratcemanyardttastt), 1145tiex at hostler helper (but without seniority as a locomotive fireman) who is selected for engine service &hall retain his seniority standing and all other rights is train and/or yard or hassling service. Hrnvewr. such etttptnree shall he permitted to exercise such rights only in the event be or she is unable to bold arty position or assignment in engine sernttxi as engineer, fireman stn a designated pnsitinn in passenger

service. £tosttor or hosder helper.

It is the Organization's, position on recall of trainmen and yardmen, that the

senior furloughed employee is to be recalled an service, ant the junior entpLt. In chic insraarx, Claimant should haze been allowed to remain in train service in the pout from July 3. 1931, through August 5. 1991, according to Fetitioaer. F'vtrthet~atvre, the Organization ixtsLSas that the OLE and the Carrier do not have tine authority to negotiate agreement% which wii! its any way aller or efteet the working conditions of arty employee represented by

PLQ ND · 5yo7 -AwJ hn I

4 the U7V without first having 3 mutual agreement by that Orgaixizatinn, namely the L1TU.

The 13LE tortes in its argument that under its rules,. engineers are recalled from the reserve board in reverse senCority order. Thus, in this case, it was proper to apply the BLE rulr acrd calf back W engine service the Jetttiar

engineer, the claimant Mr. Kelley,

It is the view of this Board that the BLE agreement'is canualt(ng when promoted engineers are returned to engine service from train, 5tr4xte.

The Carrier takts the position that Claimant Kelfev, itt this instance, in terms of his assignments, wac not mishandled. Curler notes that Kelley was able

to hold the assignment izz engine service as an engineer and therefore had to

take this assignment, which Conductor Kelley perceived as inferior to the trainman position, which Candiactnr Collins was working. The Carrier believes that accepting the Organization's position in this dispute would specifically suggest drat the 13TU had Jurisdiction Over W.>~ matters, Tire Carrier reties in part an Award No. i of Public Izw Board 5056 involving the same parties, which betel in relevant part;

iuo . 54d7' AWd 11o ~ I
5

That cflnsisient in such argument is the position that the tITU (E) along with the BLI` is somehow a second labor rrgaresentativt when it comes to ettgiasar's seniority. Obviously. any decision sustaining the claim herein would necessarily recognize the vaHdity of the LJTU (E.)'s position. However. this Board lack's jurisdiction under the RLA to issue any Award which could he interpreted to give flee L'1'Li (E) reprssenratiue bargaining or decision making powers aver any aspect of an engineer's race of pay, rules, or v-*rkting conditLons-.-

Ths Board has exaftrtned this case with great care and is t:atavinsed that there was no error in the handling of the particular assignment of Conductor Kelley irk this instance, It appeals that the t7"!`U was attempting to apple its seniority rules to this a5stgnlnetst, with respect to engine service. This i5 iitapprOptiatG. The BLE rule should prevail in this respect and it happens to be contradictory to the Lrfi3 with respect to such type of assigftment (force assignments). It is dear, as the Board view it, that this dispute and argument is not as ii stands is the best interest of the engineers in terms of the confusion which it eztgenders. It is strongly suggested ~tltat the three parties involved in this ltt2tter, tare BL.E, the LfIL, and the Carrier, attempt to reconcile the language

ft.f No. 5Wa7-Awe No. i 04 the two -agreements, with respect to this issue. Such a resolution could be of great benefit :o ail concerned.

AWARD

C3afrn denied.

1 4

ir~ I~i

I

1. NIL Z.,lek18rm$Ita NC7ltrFll-Chal.T7ita7t

_ ice'
L t "'""'"'"'~ 'd:IVI. Urt

mployee~mber Carrier Me

Schaumburg I'
February' 1995