In the Matter of Arbitration between:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISJON - IBT RAlL CONFERENCE
and
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION
In the Matter of Arbitration between:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISJON - IBT RAlL CONFERENCE
and
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION
PUBLIC LAW BOARD 5564
Case No. 53
Award No. 53
THE ORGANIZATION'S STATEMENT OF THE CLAIM
This DeciJion resolves the Organization's claim as fqll9w,:
The Carrier violated the Agreement when it assigned members of a Bridge and Building (B&B) gang headquartered on the Southwest Service District to perform B&B work on the Rock Island District o.n April 181 2012 instead of the Claimants who were headquartered on the Rook Js1and District (System Fil& A120615/03 20-634 NRC).
As a consequence of the violation referred to in Part 1 abcwe1 Claimant G. Ponce shall be compensated for eight (8) hours at his respective straight time rate of pay and Claimants R. Knor and D. Butler shall be compensated for three (3) houn; at their respet;:tive straight time rates of pay.
STATEMENT OF THE CASE
Based ori the record developedby the Organization and the Carrier, this Public LclW 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 hasJurisdiction over theParties and the dispute.
This disputeisbetween 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 that Metra violated the Parties' Agreement Appendix O and the Parties' March 28, 2006 Memorandum of Understanding (MOU).
There is no dispute over the facts. The Parties dispute the interpretation and application of Agreement Appendix O and the March 28, 2006 MOU to the facts.
The Claimants are assigned to the Rock Island District, Building and Bridges-Water Service Subdepartment (B&B), also knownor referred to as the Rock IslandB&BGang No. 1 or the Blue Island Gang No.1, which is headquarted at Blue Island, Illinois, Rock Island District.
On April 18, 2012, the Carrier assigned a Southwest Service District (SW) B&B Gang to install two windows, prepare the Washington Street entrance for a security gate andmake other improvements to the Union Depot (UD) Tower, Joliet, Illinois, on the Rock Island District The UDTower is within Blue Island Gang No. 1's district boundaries. When the SW B&B Gang performed this work, the Claimants' Blue Island Gang No. 1 was working on the Blue Island turntable.
On June 13, 2012, BMWE's presented the claim asserting that Metra violated Agreement Appendix 0, Section 5, and the March 28, 2006 MOU by using the SW B&B Gang instead of the Claimants' Gang from the Rock Island B&B Gang No.1. The Claimants maintained thattheworkwas exclusively reserved to the Rock Island B&BGang No.1. As remedy, BMWE requested that Ponce be compensated 8 hours, and that Knor and Butler be compensated 3 hours each at the straight time rate.
On July 23, 2012, the Carrier denied the claim responding that the work was assigned to the SW B&B Gang because the Rock Island B&B Gang No. 1 Gang was working on the long-term repair of the Blue Island turntable.
On September 7, 2012, BMWE appealed Metra's claim denial asserting that the work belonged to the Claimants because the UDTower was within the Rock Island District boundaries. BMWE argued that Rock Island B&B Gangs had traditionally and exclusively performed this work within the Rock Island District.
On October 9, 2012, Metra denied BMWE's appeaL Metra argued that March 28, 2008 MOU provideq tha.t emerge11cy work supersedes District gang assignments, and since protecting the security ol passengers and empfoyeea is an emergency, then the Carrier was entitled to assign any gang to perform the UO Tower work.
On August 16, 2,013, the claim was conferenced without res.olution. Thereafter, the
dispute was docketed with this Board for adjudication
The applicable provisions of the Agreement. Appendix 0, and the Ma h 28, 2006
MOU state:
AGREEMENT between the Northeast Illinois Regional Commuter RaUroad
Corporation andthe Brotherhood of Maintenance of Way Employes
IT IS AGREED:
Inthe application ofRule 17, Call Ruteand Rule 18. Overtime of the April 16, 1984 General Rules Agreement, as amended, the following procedures will govern the assignment of overtime, whether planned or ernergency.
*
Section 5 Rock Island· B&B: This district is broken down into three areas: LaSalle Street to M.P. 0.4 is normally assigned to th.e LaSalle Str.eet Crew;
M.P. 0.4 to Joliet is11ort11ally assigned to BlueIsland Gang No.1; and C.W.t
and the Heritage Cortidorare normalfy assigned to Btue Island Gang No. 2. These gangs handle all B&B work on the districti including planned and emergency overtime. Any such overtime. either planned or emergency, is offeredto the gangnormally assigned to that area. Seniority within indlviduat gangs is always honored.
Any overtime help for LaSalle Street Gang would first go to Blu.e Island Gang. 1 and then to Blue Island Gang 2.
Any overtime help for Blue Island Gang 1 would firstgo to Blue
Island Gang 2 and then to LaSalle Street Gang.
Any overtime help for Blue Island Gang 2 would fin;tgoto Blue Island Gang 1 and then to Ltlsan Street Gang,
* *
Section 8. Southwest Service - B&B: One gang handles auwork, including; all overtime, on this district. lf additional assistance is needed, Blue Island Gangs 1 & 2 will be called in seniority order. If additional employees are stiO required, other Rock Island B&B employees willbe called in seniority order•
• •
The:March 28, 2006 MOU:
This is in regard to the application of the G.enerat Agreement between the Northeast Illinois Regional Commuter Railroad Corporation and the Brotherhood of Maintenance of Way Employes, particularly in regard to the assignment of distr:fct gangs. It is understood that such gangs will be established for the purpose ofperforming work onaparticular districtand will be assigned to perform work only within that dfstrici, except in the event of
an emergency. The delineation of districts as set ftnth in Appendix "O" wm
govern in the applicatlon of this letterof t,inderstanding. In other words, the system will be div.ided into four districts: ock Island, Metra Electric, Milwaukee, and Southwest Servlce.
In other than emergency situations, arrangements may be made for temporary cross-district assignment of gangs by agreement between the parties....
1t
BMWE i1SSerts that Appendix O and the March 28, 2006 MOU clearly and unmistakably establishseniority boundaries and work rightsofemployees so that the work ina district willbehandled by the gangs in that district. Forthis reason, BMWEargues that the Claimants were entitled to the work on the UD Tower which the Carrier assigned to SW
B&B Gang employees in violation ofthe Agreement and the MOU. BMWE argues the well establish principle that where seniority isconfined, work is al.so confined is supported by many NRAB. Awards. As remedy for the Carrier's violation, BMWE requests 8 hours straight time pay for Ponce and 3 hours st lght time pay for Knor and Butler at tfleiF respective straight time rates.
The Carner asserts 3 defenses to the Claim as follows:
First, the Carrier asserts that the Board lacks jurisdiction to resolve the dispute because BMWE has attemptedtoprogress multiple claims for connected work onmultiple days. The Carrier argues that the Board has 4 claims for one incident before it in¢luding Cases 53, 54, S5 and 58. The Carrier argues the cases involve the same fad$' and arguments covering different dates. Thecarrier argues thatthis is improper claimsplitting, also known as claimstacking. of a single incidentinto separate days and separate portions of the same work. The Carrier concludes that thi$ a significant procedural defectsuc::h that the Board lacks jurisdiction to resolve the dispute andrequests dismissal of the claims,
Second, the Carrier asserts. that BMWE has not meUhe burden of proof to prove the claim because the Organization merely quotes the Rule without proving that the Rock ls'2lnci B&B Gang had rights to be assigned the UD Tower work over the SW B&B Gang. Metre also eollaterallyarguesthat,atthe time ofthe claim, the Rock Island B&B Gang was worklng on the Blue Island turntable. For this reason. the Carrier says the Rock Island B&B Gang pould not be assigned tQ the UP Tower security improvemenb>.
Finally, Metra asserts thattheAgreementwas not violatedbased on the.emergency exceptfon in the Agreement and the March 28, 2006 MOU. Metra argues that there is no
Agreement orMOUlanguage which requires the Carrier to exclusively reserve emergency
work to the Rock Island B&B Gangs. The Carder says that the UD Tower work involved security improvements to protect the pubic thereby constituting emergency work. Metra again argues that, since the Rock Island B&B Gang No. 1 wasworking on a long term BIUe Island Facility turntable, then the Carrier was within its rightto assign this security workto the SW B&B Gang. Further, Metra concludes an emergency wi.11 supersede any district gang assignment based on the March 28, 2006 MOU. Metra asserts that for these reasons, the. UD Tower work was considered straight time emergency work.
5
Claim Splitting
Case No.. 53
Award No. 53
The record establishes, and it is undisputed, that Cases 53, 54, 55 and 58 do not involve identical UDTowerwork assignments and the work didnqt o «;:uron the same date. The on property handling record shows that the Claim 53 April 18, 2012 work involved installation of 2 windows and preparation for a gat&. The Claim 54 April 11, 2012 work involved instatfation of posts for agate. The Claim 55 April 13 and 16, 2012 work involved installation of posts1 fencin9 and gates. The Claim 58 April 10, 2012 work involved installation of signs. Moreover, Claims 53, 54 and .55 are advanced on behalf of Pone&, Knor and Butle.r. However, Claim 58 isadvanced onbehalf of Ponce and Knot.. Based on thes& facts the claims involved different work on different days and, in Case 58, different Claimants. The N.RAB Awards cited by th Carrier as grounds for dismissal of these claims for claim splitting involve factually identical or virtually identical claims regarding time, place and circumstance or duplicate claims. These claims are significantly different and do not, for that reason, constitute split or stacked claims.
The only connection among: the claims is that the work was done on the uo Tower.
For these reasons, the Board ffnds that BMWE has not engaged in claim splitting
or clain, s qldng,
However arguably, to achieve efficiency in the on property claim handling and in the Board's dispute resolution processes, the Parties' consolidation ofth se claims wot,1Jd seem to have been favored. But. there is no evidence in the on property handling that either Party sought claim consolidation. Therefore, the Board must take these.elaims as they find them presented by the Parties.
For tbese reasons, the Carriers assertion that the Board does not have jurisdiction over the claims is without merit.
Rock Island B&B Gang's Right to the Claimed Work
The Carrier's second defense to the claim asserts that BMWE has notproved that Rock Island B&B Gang's right to the UD Tower work. The Carrier also argues that the
Claimants' assignment to the Blue Island turntable work prevented assignment to the claimed work and required the Cartier to atsign the UD Tower w<>rk cross-0istricts b-c:nmdaries to the SW B&B Gang
The plain, clear andunambiguous language of Appendix 0, Section 5 provides that the Claimants' Rock Island B&B Gang No. 1 is to handle all B&B work on the Rock Island district, including planned andemergency overtime. The UDTower is located on theRock Island district. Furthermore, the March 28, 2006 MOU's plaint clear and unambiguous language provides specifically for theassignment of district gangs stating inpertinent part,
gangs will be established for the·purpose of performing work on a particular district and will be assigned to perform work only within that district, except in the event of an emergency. {Emphasis added).
Theundisputed. facts establish the UD Tower work was work within the Claimants' Gangs' district. Pursuant to the proven facts, wh,n read together, Appendix 0, Sec;tion 5 and tile March 28, 2006 MOU require that the Carrier will assign all B&B work. including
planned or emergency overtime, to the Claimants' Gang and that such work wm be
assigned only to the Gang within theUD Tower's district boundaries whichis, inthiscfaim,
the Rock lsrand Gang No. 1.
The March 28i 2006 MOU further provides that, in other than an emergency and with the Parties' agreement, the Carrier may make temporary cross-0istrict Gang assignment This language would allow the SW B&BGang toperform the UDTower work in casesother than anemergency, suchas the Rock Island Gang No. 1's work on the Blue Island turntable. with BMWE's agreement However, there is no evidence. in the on property handling tt.atthe Carrier hadan agreement with BMWE regarding a cros&-distrlct assignment of the c jmed work.
For these reasons, the Board finds that the Carrier's assignment of the SW B&B Gang to the UD T"Ower work, based only on the Claimants' assignment to the Blue Island Gang No. 1 turntable work without BMWE's agreement, isavrolation ofthe Agreement and the March 28, 2006 MOU.
However, the Cartier also asserts· as its third defense that an emergency existed, which is a recognized exception ta the Agreement and the March 28, 2006 MOU work assignment rules,
It is well..estabUshed in NRAB Awards that when the Carrier asserts that an emergency exists ta justify deviating from the requirements of the Agreement, the Carrier is obligatedtopresent sufficient.evidenceestabllshing an emergency existed. Specifically, the Carrier must demonstrate that its extraordinary action of deviating from the governing work place rules was necessary to preserve property and to protect lifaand limb. In this regard, it is reasonable ta find a record of some actions or reaction recognizing the emergency inannouncements of or <ieclarations of the existence of the emergency by the Carrier. In addition, it ts reasonable to expect that out of a sense of urgency. an emergency wouldresult inrapiddeployment offorces on overtime assignments. However. the record contains no evidett.ce of actions, reactions,. emerg,ncy announcements or emergency declarations by: the Carrier. The record also shows. that the Carrier assigned the UD Tower work with straight time pay during regular shift times which does not manifest a sense of urgency on the Carrier's part indicating an emergency.
Inthis dispute, based on the totality of the circumstances and evidEmce, there is no evidence of an emergency before the Carrier's assigned the SW B&B Gang to the UD Tower work. The record shows that the Carrier's assertion that an emergency existed regarding the UD Tower work arose during the on property handling. For this reason. the Carrier's. emergency exception defense is post hoc of BMWE's claim filing,
The Board finds these facts establish apost hoc emergency defense by the Carrier amounting to an excuse for the Carrier's violation of the agreement and not grounds supporting ora defense of the Carrier's deviation from.the governing work place rules.
For au these reasons, the Board finds the Carrier viola.tE;id the Agreement and the March 28,,. 2006 MOU in the assignmant of the SW B&B Gang to the UD Tower work.
PLS5564
caseNo.53
Award No. 53
Astoremedy, the Board also findsthatbut forthe Carrier's violation, the Claimants would have performed the work .and been paid straight time for the·claimed hours. Therefore, the Carner must make the Claim.;ar'lffiWhore With &-hours straight time pay for Pone& and 3 hours straight tfme pay for Knor and Butler. ·
BMWE's claim is sustained..
. For the Organi2: tion!
Publiclaw Boars Advocate BMWS-:IBT
Neutral Member;
Rogers,,Esq.
Sean J. Rogers & Associates, LLC
LeOnardtown. Maryland
December 21,- 2018 ·