PUBLIC LAW BOARD NO. 5418
Case No. 63 Award No. 63
PARTIES Brotherhood of Maintenance of Way Employees
to -and-
DISPUTE: Springfield Terminal Railway Company
STATEMENT OF CLAIM:
"(a) Carrier violated the rights of Claimant Thomas Richardson
under the provisions of Articles 1, 5 & 10 of the current
agreement between the BMWE and ST when beginning on
December 17, 18, 24, 25, 26, 27 & 31, 2005 and on January
1, 2, 7 & 8, 2006 by assigning the work of the Claimant for
which he previously performed on overtime to Managers
not covered by the Scope of the BMWE Agreement. All
other claim dates related to this case are held in abeyance
until the outcome of this case is resolved.
(b) Claimant Richardson shall be compensated all hours worked
by the Managers who worked his position on his rest days
for this violation."
FINDINGS: This dispute centers on the Carrier assigning non-agreement employees to
work at their East Deerfield Waste Water Treatment Plant (WWTP) on the dates cited
(Claimant's Rest Days and Holidays) in lieu of the claimant, who is the incumbent of the
WWTP operator's position.
The Organization undisputedly states that the position of WWTP operator has fallen
under the scope of the BMWE since 1995. They point out that the plant operator must be
licensed by the State of Massachusetts and that the claimant has the required license and
has performed said work on his rest days and holidays until December 2005. They assert
that because the Carrier did not want to pay any more overtime to the claimant, they
assigned the rest day and holiday work to non-agreement personnel. The Organization
contends that such action is a clear violation of their agreement which resulted in the loss
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of work opportunity for the claimant.
Conversely, the Carrier argues that the record in this case suggests that there are
circumstances unique to this claim that warrants some elaboration. They contend that the
W WTP operator's position has been the source of contention ever since the work was
granted to the BMWE. They point out that the WWTP requires additional coverage and
they have repeatedly advertised for another position but no BMWE represented employee
has ever applied
The Carrier also points to the fact that pursuant to a Public Law Board Award, they
are required to compensate an employee for initially obtaining the required license, as
well as the time involved in attending classes and other related expenses, however,
notwithstanding this incentive, the BMWE represented employees seem disinterested in
applying for the additional position.
In addition, the Carrier asserts that non-agreement employees have performed such
work, without claims being submitted, when the claimant is not available due to
Vacation, Sickness and Personal Days, thus they contend the Organization has allowed
Managers to cover the work.
After due study of the entire record, including the parties' submissions and arguments
presented in support of their respective positions, the Board cannot sustain the Carrier's
position in this case. The Board is keenly aware of the Carrier's diligent effort to secure an
applicant for the additional position from the ranks of the BMWE. However, the Board
notes the record is devoid of any attempt by the Carrier to secure licensed personnel from
outside the Company, which would most likely resolve their dilemma. While we recognize
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the Carrier's frustration over the facts and circumstances brought forth in the record, the
Board must nonetheless address the applicable rules of the Agreement. Therefore, in light
of the clear usurpation of work and the loss of work opportunity, we deem the agreement
was violated and an award favorable to the claimant must be made, hence the claim is
sustained.
The Carrier is directed to implement the Award within 30 days of receipt.
AWARD: The claim is sustained.
Franci . Domzal
NeMember Member
A. F: Lomanto B. A. Winter
Carrier Member Organization Member
Dated:
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