PUBLIC LAW BOARD 5664
l.n the Matter of Ad>ltration between:
BROTHERHOO.D OF MAINTENANCE OF WAY
l.n the Matter of Ad>ltration between:
BROTHERHOO.D OF MAINTENANCE OF WAY
Case No. 45
Award No. 45
This Decision resorves the Organization's claim as follows:
The Carrier violated the Agreement when it failed to compensate Group A, Rank 1, Class B Work Equipment Operator 1. Cornejo the Group A., Rank 1, Class A rate o.f pay for operating an excavator on February 15 and 18,2011 {System File C110411/08-30-S11 NRC}.
As a consequence of the violation referred to in Part 1 above, Claimant Cornejo ·shall be compensated the difference in pay between the lower Group, A, Rank 1, Class B rate he received and the higher Group A, Rank 1, Class A rate for sixteen (16) hours.
Based on therecord developed bythe Organization and the Carrier, this Publ L.aw Board (Board} finds the Parties herein to be a Carrierand Employees within the meaning of the Railway Labor Act, asamended, and that this Board has.Jurisdiction over the Parties and the dispute.
This dispute isbetween the Brotherhood of Maintenance of Way Employes Division
- IBT Rail Conference (BMWE or Organization) and the Northeast Illinois Regional Commuter Railroad Corporation (Metra or Carrier) (collectively the Parties). The dispute arises out of BMWE's claim tnat Metra violated the Parties:' Agreement Rule 1, 3, 16 and Appendix A by failing to pay the Claimant the appropriate rate.
PL85564
Case No. 45 AwardNo.45
The facts and on property handling of BMWE's. claim are as follows:
The factsare not disputed.. tt is theapplication of the Agreement Rules tQthe fact& on which the Parties do notagree.
1he Claimant, I. Cornejo (ClaimantorComejo), is a Group A,Rank 1, Class BWork Equipment Operator. On February 15 and 18, 2011, for 18 ho11rs, h operated an excavator at 8 Avenue and 35ttt Street, Rock Island District. The dispute turns on the classification of the excavator that he operated under the Agreement SMWE claims Cornejo <>perated an excavator whffe Metta cla.ims he operated a mini-excavator or compact excavator. The tassification difference affects the Claimant's hourly rateofpay
On. April 11, 201, BMWE submitted a claim on Cornejo's behalf asserting Metra
violated Rule 16 because the Claimant was notcompensated for operating the excavator which BMWE argued rs classified as a crass A machine pursuant to Rule 16. For this
reason BMWE argued that the Claimantwas entftfed to a higher rate.of pay pursuantto Appendix A
On May 12, 2011, Mt!fra respond!:!d that the equipment Cornejo operated on February 15 and 18, 2011 was a mint-excavator equivalent to a skid steer loader with backhoe capabilities.
On June 24, 2011, BMWE appeal$d to the.next levelasserting further that no mini excavators are classified as Class B equipment while excavators are classified as Class A equipment pursuant to Rule 3.
On August3,2011, Metraresponded that thedisttnctionbetween Cfa$$ A.and Class B equipment is based on whetherthe equipment is heavy duty or tight duty, Metra argued that, as a compact excavator, the machine was akin to farm-type backhoe rather than a heavy duty backhoe or bulldozer and so, would come under the lightduty category Class B, notthe heavy duty category Class A
On March 2, 2012., the claim was conferenced without resolution and BMWE
progressed the claim to resolution before this Board.
PLBS564
Case No. 45
Award,No. 45
Each Party interprets the term excavator to suit their respective interpretative concepti<:>n of the Agreement language.
BMWE. maintains a mini-excavator is an excavator pursuant to Rule a. Therefore,
it Is Class A equipment.
Metra maintains a mini-excavator, or compact excavator, is light duty equipment.
Therefore, it Is Class B equipment.
When agreement language ts disputed a$ unclear or amt,iguoµs, the first rule of construction for the Board toapply requires a determination of the intent of Parti.es when the agreement language wasnegotiated. Neither Party presented evidence during theon prop&rty handling on the Parties' intent with regard to Rule 3 during negotiations. Moreover! neither Party argued that the disputed word, excavatorr was unclear nor ambiguous. Therefore, there is no evidence and no need to determine the Parties' Intent with regard to the meaning of the word "eKcavator.
Another rule of construction forthe aoard to apply requires a determination pf the meaningofa termbased onrelated language found in the agreement Inthis regard, Rule 3, Note 1, provides that machines not listedi which would cover the mini-excavatorin this case, should be incJude<i an<;t shall beconsicfere(:t tQ be in the appropriate Rank andClass as though they were listed. However, no further interpretive guidance is provided as regards the appropriate Rank and Ctass of a mini-excavator. Therefore. this Note 1 language provides no guidance on the classtflcation of the mini-excavator.
Note 1 also provides that for machines s.ubsequently introduced into service, the Rank and Class and the rates of pay for these new machines shalt be agreed in accordance with RUie 26.
Rule 26 describes a bargainjng process, ending in arbitration, regarding: changes in rates of pay for new po.sitlons; changes inwork methods; and expansion of duties and responsibilities of supervisory employees. There is no evidence that the Rule 26 processes were used by the Parties to determ.ine the appropriate Rank and Class of a mini-excavator.
PLB5564
CaseNo.45 Award No.45
Each Party argued that the meaning oHhe disputed term. excavator, as applied to tilemini-excavatoroperated bythe Claimantwa$ clear and unambiguous. Yet, they do not agree on the appropriate classification of the equipment.
An appropriate resolution ofthe dispute may be found inthe rule ofconstruction that contract terms should be given their pfain meaning, most often. the meaning found in simple, established dictionary definitions. The Board turns to two sources for a dictionary definition of excavator:. One source ls traditional and the source other online.
The Macmillan Dictionary defines excavator as "a large machine for digging holes in the ground:•
Dictionary.com defines excavator as "a power-driven machine for digging, moving, or transporting loose gravel. sand or soil."
The Board finds that applying either definition to the mini-excavator, which the Claimant operated, leads to the conclusion that the equipment is an excavator as that term is used iO Rule 3, It must follow then, pursuant to Rule 3, 16, and Appendix A, the Claimant isentitledto the.Work Equipment Operator, Group A, Rank 1, crass A rate ofpay for 16 hours work on February 15 and 18, 2011.
AWARD·
PLB5564
Case No.45 ·
Award No. 4t,
The claim. ls sustainec:L The Claimant must receive Equipment Operator, Group A. Rank 11 Crass A rate of pay forhis 16 hours' work on Felm.rary 15 · a.nd 18. 2011,
-PubHc law Board.Advocate
BMWE-IBT
tt =
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Neutral Member:
Sean J. Roger& &Associates.. LLC
Leonardtown, Maryland
December 21, 2016·