In the Matter of Arbitration between:
and
In the Matter of Arbitration between:
and
PUBLIC LAW BOARD 5564
Case No. 55
Award No. 55
This Decision resolves the Organization's claim as follows:
The Carrier violated the Agreement when It assigned members of a Bridge and Building {B&B} gang heacfquartered on the Southwest Service District to perform B&B work on the Rock Island District on Aprit 13 and 16, 20.12 instead of the Claimants who were headquartered on tfle .Rock Island District (System File A120608/08-20 3.1 NRC).
As a consequence of the violation referred to in Part 1 above, Claimants D. Butler, G. Ponce and R. Knor shall each be compensated for sixteen (16} hours at their respective straight time rates of pay.
Based on the record developedby the Organization andthe Carrier, this Public Law Board (Board} finds theParties herein to be a Carrier and Employees Within the meaning ofthe Railway Labor Act; as amended, and that this Board hasjurisdiction gver the Parties andthe dispute.
This dispute isbetween the Brotherhood of Maintenance of Way Employes Division
,.... IBT Rail Conference (BMWE or Organization) and the Northeast llllnois Regional
caseN<l. 55
Award No.. 55
Commuter Railroad Corporation (Metra or Carrier) (collectively the Parties). The dispute arises out of BMWE's claim that Metra viorated the Parties' Agreement Appendix Q and the Parties' March 28, 2006 Memorandum of Understanding (MOU).
There Is no dispute over the facts. The Parties dispute the interpretation and
appllcatton of Agreement Appendix O and the March 28, 2008 MOU to the facts.
The Claimant are assigned tothe Rock IslandDistrict, Building and Bridges-Water Setvice Subdepartment (B&B),.also known orreferred toasthe Rock Island B&BGang No. 1 or the Blue Island Gang No.1, whichIs.headquarted at Blue Island, Illinois, RockIsland Dis.trict '
On April 13 and 16, 20121 the Carrfer assigned a Southwest Service Distrtct (SW)
B&B Gang to install gate posts, gates and fencing at the Union·Depot (UD) Tower. Joliet,
Illinois, on the Rock Island District. The UD Tower is within the Blue Island Gang No. 1's. district boundaries; When the SW B&B Gang performed this worl<, the Cfaimants1 Blua
fsla.nd Gang No. 1 was working on the Blue Island turntable.
On June 7, 2012, BMWE's presented the claim asserting that Metra violated Agreement Appendix 0, Section 5, and the March 28, 20()6 MOU by using the SW B&B Gang instead of the Claimants' Gang from the Rock (stand B&B Gang No.1. The
Claimants maintained thattheworkwas exclusively reservedto the Rock Island B&BGang No.1. At. remedy, BMWE requested that the Claimants be compen$ated 16 hou.rs each at the straight time rate.
On July 23, 2012, the Carri.er denied the claim responding that the work was assigned to the SW B&B Gang because the Rock Island B&B Gang No. 1 Gang was working on thelong-term repc.1ir of the Blue Island turntable.
On September 6, 2012, BMWE appealed Metra's claim denial ass.erting that the work belonged to the Claimants because the UDtower w s within the Rock Island District boundaries. BMWE argued thatRock Island B&B Gangs had traditionally and exclusively performed this work within the Rock I.standDistrict
On October 9, 2012, Metra denied BMWE'sappeaL Metra argued that March 28, 2006 MOU provided that emergency work supersedes District gang assignments, and since protecting the security of passengers and employees is an emergency,, then the Carrier was entitled to assign any gang to perform the UD Tewer work.
On August 16, 2013, the claim wasconferenced withoutresolution, Thereafter, the dispute was docketed with this Board for adjudication.
The applicable provisions of the Agreement. Appendix 0, and the March 28, 2006
MOU state;
OVERTIMI;
In the application of Rule 17. canRule and Rule 18, Overtime of the April 16, 1984 General Rules Agreement, as amended, the following procedures will govern the assignment of overtime, whether planned or emergency.
* * *
Section 5. Rock Island - B&B: This districtis broken down into three areas.: LaSalle Street to M.P. 0.4 is normally assigned to the Lasane Street Crew;
M.P. 0.4 to Joliet is normally assigned to Bfue Island Gang No. 1; and C.W.I.
and the Heritage Corridor arenormalty assigned to Blu.e Island Gang No... 2, These gang$: handle an B&B work on the district, inohJding planned and emergeocy overtrrne. Any such overtime. either planned or emergency, i, offered to the gang normally assrgned to thatarea. Senioritywithinindivlduaf gangs is always honored. ·
Any overtime befp for LaSalle Street Gang would first go to Blue Island Gang 1 and then to Blue Island Gang 2.
Any overtime help for BlueIsland Gang 1 would first go to Blue
Island Gang 2 and then to LaSalle Street Gang.
Any overtime help for Blue Island Gang 2 would first go to Blue Island Gang 1 and then to LaSalle Street Gang.
* * *
Section 8. Southwest Service - B&B: One gang handles all work, including all overtime, on this district, If additional assistance is needed, Blue Island Gangs 1 & 2 will be called in seniority order. If additional employees are still required, other Rock Island B&B employees wiU be called in seniority order:
* * *
The March 28, 2006 MOU:
This is in regard to the application of the General Agreement between the Northeast Illinois Regional Commuter Railroad Corporation and the Brotherhood of Maintenance of Way Employes, particularly in regard to the assignment of district gangs. It is understood that such gangs wm be establishedfor the purpose of performing workon a particular district and will be assigned to perform work only within that district, except in the event of an emergency. The delineation of districts as set forth in Appendix "O" will govern in the application of this letter of understanding, In other words, the system will be divided into four districts: Rock Island, Metra Electric, Milwaukee, and Southwest Service.
In other than emergency situations, arrangements may be made for temporary cross-district assignment of gangs by agreement between the parties....
"' "' *
BMWE asserts that Appendix O and the March 28, 2006 MOU clearly and unmistakably establish seniority boundaries and work rights of employees so that the work in a district willbe handled by the gangs in that district. For this reason, BMWE argues that the Claimants were entitled to the work on the UD Tower which the Carrier assigned to SW
B&B Gangemployees in violation ofthe Agreement andtheMOU. BMWE argues thewell establish principte that where seniority is confined, work is also confined. is supported by many NRAB Awards. As remedy for the Carrier's violation, BMWE requests 16 hours straight time pay for the Claimants.
The Carrier asserts 3 defenses to the Claim as follows:
First, the Carrier asserts that the Board lack$ jurisdiction to resolve the dispute because BMWE has attempted toprogress multiple claims for connected work onmultiple days. The Carrier argues that the Board has 4 claims for one incident before it including Cases 53, 54, 55 and 58. The Carrier argues the cases involve the same facts and arguments covering different dates. The Carrier argues thatthis is improper claim splitting, also known as claim stacking, ofasingle incident into separate days and separate portions
of the same work. The Carrier concludes that this a s:ignificant procedural defect such that the Board lacks jurisdiction to resolve the dispute. and requests dismissal of the claims.
Second, the Carrier asserts that BMWE has not met the burden of proof to prove the claim because the Organization merely quotes the Rule without proving that the Rock Island B&B Gang had rights to be assigned the UO Tower work over the SW B&B Gang. Metra also collaterally argues that, at the time of the claim, the Rock Island B&B Gang was working on the Blue Island turntable. for this reason, th1:t Carrier say$ the Rock Island B&B Gang could not be assigned to the UD Tower security improvements.
Finally..rv,etra asserts that the Agreement wasnotviolated based on theemergency exception in the Agreement and the March 28, 2006 MOU. Metra argues that there is no Agreement or MOUlanguage which requires the Carrier to exclusively reserve emergency work to the Rock !stand B&B Gangs. The Carrier says that the UD Tower work involved security improvements to protect the pubic thereby constituting emergency w()f"k, Metra again argues that, since t.he Rock Island B&B Gang No, 1 was working on a long.term Blue Island Facility turntable, then the Carrier was within its right to assign this security work to the SW B&B Gang. Further, Metra concludes an emergency will supersede any district gang assignment based on the March 28, 2000 MOU, Metra asserts that for these reasons, the UD Tower work was considered straight time emergency work.
Claim Splitting
The record establishes, and it is undisputed, that Cases 53, 54, 55 and 58 do not involve identical UD Tower work assignments and the work did not occur on the same. The on property handJing record shows that ttie Claim 53 April 18, 2012 work involved installation of 2 wi.ndows and preparation for a gate. The Claim 54 April 11, 2012 work involved installation of gate posts. The Claim 55 April 13 and 16, 2012 work involved instal1ation of posts, fencing a:nd gates. The Claim 58 April 1O. 2012 work involved installation of signs. Moreover, Claims 53, 54 and 55 are advanced on behalf of Ponce, Knor and Butler. However, Claim 58 is advancedon behalf of Ponce and Knor. Based on these facts the claims involve different work on different days and, in Case 58, different Claimants. The NRAB Awards cited by the Carrier a:s grounds for dismi$$al 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 spJit·or stacked claims.
The only connection among the claims is thatthe work was done on the UD Tower.
For these reasons, the Board finds that BMWE has not engaged in claim splitting or claim stacking.
Howevert arguably, to achieve efficiency in the on property claim handling and in the Board's dispute resolution process.es, the Parties' consolidation ofthese claims would seem to have been favored. But, there is no evidence in the on property handling that
.either Party sought claim consolidation. Therefore, the Boardmust take these claims as they find them presented by the Parties.
For these reasons, the Carrier's assertion that the Board does nothave jurisdiction over the cfaims is without merit
Rock Island B&B Gang's Rightto the Claimed Work
The Carrier's second defense to the claim asserts that BMWE has not proved that Rock Island B&B Gang's right to the UD Tower work. The Carrier also argues that the
Claimants' assignrnent to the Blue Island turntable work prevented assignment to the ctaimed work and required the Carrier to assign the UO Tower work cross-districts boundaries to the SW B&B Gang.
Theplain; crear andunambiguous language of Appendix 0, Section 5 provides that the Claimants' Rack Island B&B Gang No. 1 ls to handle all B&B work on the Rock Island district, including planned andemergency overtime. TheUO Tower islocatedon theRock Island district Furthermore, the March 28, 2006 MOU's plain, clear and unambiguous language provides specifically for the assignment ofdistrict gangs stating inpertinentpart.
gangs wlll be.established for thepurpose of performing work on a particular district and will be. assigned to perform work only within that district, except in the event of a:n emergency. {Emphasis added).
Theundisputed facts establish the UO Towerworkwas work within the Claimants' Gangs• district. Pursuant to the proven facts., when read together, Appendix 0, Section 5 and the March 28, 2006 MOU require that the Carrier will assign all B&B work, including planned or emergency overtime, to the Clarmants· Gang and that such work wiU be assigned only to the Gang within the UD Towers district boundaries which I$, in thisclaim, the Rock Island Gang No. 1.
The March 28, 2006 MOU further provides that, in other than an emergency and with the Parties' agreement, the Carrier may make temporary cross-district Gang assignment This language wouJd aHow the SWB&B Gang toperform the UDTower work.
in cases other than anemergency, such as the Rock Island.Gang No. 1's.w.ork onthe Blue
Island turntable, with BMWE's agreement. However, there is no evidence in the on property handling thatthe Carrier had an agreement with BMWE regarding a cross-district assignment of the claimed work.
For these reasons, the Board finds that the Carrier's assignment of the SW B&8 Gang to the UD Tower work, based only on theClaimants' assignment to the Blue Island turntable work without BMWE's agreement, is a violation of the Agreement andthe March 28, 2006 MOU.
Pl85564
Case No.S5
Award NQ. 55
However. the Carrier also asserts as its third defense that an emergency existed, which is a recognized exception to the Agreement and the March 2S, 2006 MOU work assignment ruJes.
It is well-established in NRAB Awards that when the Carrier asserts that an emergency exists to justify deviating from the requirements of the Agreement, the Carrier is obligated to present sufficient videnceestablishing anemergency existed. Specifica[ly, the Carrier must demonstrate that its extraordinary aetfon of deviating from the g0vt1rning work place rutes was necessary to preserve property and to protect life and limb. In this regard, it is reasonable to find a record of some 11etions or ret!ctions reeognizi the emergency in announcements of or declarations of the existence of the emergency by the Carrier. In addition, it is reasonable to expect that out of a sense of urgenc:y1 an emergency would result inrapiddeployment of forces o.n overtimeassignments. However, the record contains n0 evidence of actions. reactions, emergency announcements or emergency declarations bythe Carrier. The record also shows that the Carrier assigned the UD Tower work with straight tirne pay during regular shift times which does not manifest a sense of urgency on the Carrier's part indicating an emergency.
In this dfspute, based on the totality of Rte circumstances and evidence, there is no evidence of an emergency before the Carrier's as.signed the SW B&B Gang to the UD Tower work:. The record shows that the Carrier's assertion that an emergenc:y existed regarding the UD Tower work arose durfng 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 factsestablish apost hoc emergency defense by the Carrier amounting to an extij$& for the Carriers violation of the agreement and not grounds supporting or a defense of the Carrier's deviation from the governing work place rules.
For all these reasons. the Board finds the Carrier violated the Agreement and the March 28, 2006 MOU in the assignment of the SW B&B Gang to the UD Tower work,
PLB5564
CaseNo.55
Award No. 55
As to remedy; the Board also finds that but for the Carrier's.violation, the Claimants would have performed the work and been. paid straight time for the claimed hours. Therefore, the Carrier must make the Claimants whole with 16-hours straight timepay.
BMWE's ciaim.is sustained.
Forthe Organization:
....
Public·Law Boa'rd Advocate BMWE-IBT
. Neutrat Member.
SeanJ. og .
Sean J. Rogers & A$sociatesi LLC Leonardtownt Maryland
December 21, 2016