PUBLIC LAW BOARD 5564
Case No. 49
Award No. 49
In the Matter of Arbitration between:
In the Matter of Arbitration between:
THE ORGANIZATION'S STATEMENT OF THE CLAIM
This Decision resolves the Organization'sclaim as follows:
The Carrier violated the Agreement on November 5 and 61 2011 when it assigned junior employe M. Mailey to perform overtime service in connection with constructing rafters for a new shanty near 14th Street instead ofsenior employe A Moore (System File C111230/05-21-624 NRC).
As a consequence of the violation referred to in Part 1 above, Claimant A Moore shall be compensated twenty-one {21) hours overtime at his respective rate of pay.
Based on the record developed by the Organization and the Carrier, this Public Law Board (Board) finds the Parties herein to be a Carrier and Employees within the meaning of the Railway Labor Act, as amended, andthat this Board has jurisdiction over the Parties and the dispute.
This dispute isbetweenthe 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 that Metra violated the Parties' Agreement Rule 18(k) by allowing a junior employee, Marshand Mailey, to work overtime hours when a senior employee, Anthony L. Moore, was available and not called to overtime service.
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The facts are not disputed. The dispute turns on each Parties' interpretation of AgreementRule 18(k).
The facts and on property handlihg of BMWE·s claim are as forlows:
On December 9, 2011, BMWE submitted a claim on behalf of Moore, seniority date July 30, 1999, asserting that Metraviolated Agreement Rule 18{k)when it allowed Mailey, seniority date Augutrt 31, 1999, to work 21-hours overtime constructing rafters for a new Trainmen's shanty and thenteadng down the old shec.i at 14t1t Street on November 5 and 61 2011.
OnFebruary 3, 20012; Metra responded that there was no violation of RuJe 1 S(k} because the overtime required was after the regular work week and was property offered to the junior employee who had been working on theproject. Metra asserted·this was the accepted practice andthe 21-hours overtime claim wasexcessive. Metra deniedtheclaim.
On March 23. 2012, BMWE appealed the claim reiterating its position that Mailey's overtime assignment violated Rule 18(k). BMWE presented evidence that Mailey was working on window installation the week ofOctober 31, 2011 at 59111 StreetStation and not on the 141h Street shanty project
On May 16. 2012, Metra responded to the appeal asserting that Malley performed the 14th Street shanty construction during his regular hours while the Claimant did not participate in the project during his regular workweek, For this reasonand in accordanc.e with Rule 18, Metra argued that Maffey, who performed the work during assigned hours, was properly used to perform overtime service which flowed from the project. In support of its position, Metra cited Appendix O questions and answer 8. which states,
In paragraph 15 of Side Letter No. 8, there are times when an unassigned machine operator operates a machine all week. If the machine is needed Saturday on anovertime basis who is called?
Ans. The machine operator who has been opera,ting thtJ mar;hfne all week.
2
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Metra argued, citing question 14, as well, that continuity of work supersedes seniority. Therefore. Metra concluded that Mailey "was properly used to perform the overtime workwbich flowed from the project/!
On October 12, 2012, the claim was conferenced without resolution and 13MWE
progressed the claim for resolution before this Board.
Relevant and material to this claim, Rule 18(k) states:
* *
(k} When overtime·service is required of part of a gang continuous With, before, or after the regular work period, the senior available qualified employees in therankinvolved shallhave preference tosuchovertime if they so desire.
* *
BMWE has the burden to prpve the elements of its claim.
In Its March 23, 2012 appeal of Metra·s initial denial of the ctalm1 BMWE asserted that Mailey.had not continuouslyworked on the 14111 Street shanty projectbecause Carrier Cantenary Gang1 reports showed thatMailey was installing windows at5911'1StreetStation. However, Metra's May 16. 2012 response states that the payroll labor reports faUed to properly detail that Mailey work on the shanty project on October 31 and November 1, 201t. Me stated as weU,
the shanty project was progressing well enough by the endof November 1, 2011 that Mr. Mailey from Cantenary Gang 1 and Mr. Ringo from Cantenary Gang 2 were returned to their regularly assigned gangs for the remainder of the regular workweek, specifically Wednesday, Thursday and Friday November 2 to 4, 2011.
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BMWEasserted thatthe Carrie.r's evidence, as regards Mailey's work for tht,Week of October 31, 2011, fails toestablishhisovertime service on November 5 and6, 2011 was continuous as required by Rule 18 because he did not work on the shanty project on November2 through 4, 2011, BMWE reasons thatsinceMailey did not workcontinuously, Monday through Friday¥ on the 141tt Street shanty, then Rule 18's seniority requirement is not superseded.
The Board agrees. It is undisputed .that Malley's work. was not continuous, but interrupted by three d Y$ while working on window installation at the 5911t Street Station. These, facts establish Mailey had a s-day br$ak-in--servtce from tt,e 14U\ Street shanty project such that his weekend overtime service work did not flow from the project as the Carrier argues. Simply stated it isa fact thatMarley's work on the 14t11 Street shanty was not continuous. Under these facts. there was no contfnuity of work and the Carriers obligation. to comply with Rule 18 reset byMalley's break fn service..
Under the unique facts of this dispute, the Board find that the plain, ctear and unambiguous language of Rule 18 requires that the 14 street shanty overtime servrce must be assigned to "the senior available quallfied employees in the rank involved ... if they so desire...
The record establishes, and it is undisputed, that the senior qualif'ied employee in the rank Involved would have been Moore.. It is also not disputed that Mailey was compensated for 21-hours overtime working on the shanty project on November 5 an<:I 6, 2011 and the Board finds thatis the measure of Moore's loss asaconsequence of Metra's violation of his seniority rights.
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CaseNo.49 Award.No.. 49
Basedon therecord developedbythe Parties and for thereasons discussed.
above, BMWE's claim·is sustained. The Claimant is to received.21-hours.
. of ov rtime pay. ' ·
Public Law Board.Advocate
BMWE-IBT
Neutral Member:
,. . SeanJ 'o:ge
Sean J. Rogers· & Associates; LLC Leonardtown, Ma!')'land
December 21, 2016