CaseNo. 58
Award No. 58
ln the Matter of Arbitration between:
BROTHE.RHOOD OF MAINTENANCE OF VVAV EMPLOYES
and
NoRTHEAST ltLINOIS REGIONAL COMMUTER RAILROAD CORPORATION
ln the Matter of Arbitration between:
BROTHE.RHOOD OF MAINTENANCE OF VVAV EMPLOYES
and
NoRTHEAST ltLINOIS REGIONAL COMMUTER RAILROAD CORPORATION
THE ORGANIZATION'S STATEMENT OF THE CLAIM
Thi$ .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 headquartered on the Southwest Service District to perform .B&B. work on the Rock lsland District on Aprii'10, 20t2 instead ofthe Claitnants who were headquartered on the Roc.k fsland District (System File A120608/08.;20-632 NRC).
As a. consequence of the violation referred to in Part 1 above, Claimants G. Ponce and R. Knor shall be compensated for two {2) hours at their respective>straight time rates of pay.
STATEMENT OF THE CASE
Based on the recorddeveloped by the Organization and the Carrier, this Public law Board {Board) finds the Parties herein to be a Carrier and Employees within themeaning of the RailWay Labor Act, asamended,andthat this Board hasJurisdiction over theParties and the dispute.
This dispute is between the Brotherhood of Maintenance of Way Empklyes Division
.... lBT 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 Mem<Jrandum of Understanding (MOU)..
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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 Claimantsareassfgned to theRocklstandDlstrictf Building and Bridges Water Service Subdepartment(B&B),also knowrH>rteferred toasthe Rook Island B&BGang No. 1 ottheBtue !$land GaogNo,1, which is.headquartedat talu Island, Illinois, Rock Island District.
On April 10, 2012, the Carrier assigned a Southwest Service District (SW) B&B Gang to install signs atthe Union Depot (UD) Tower, Jolieti Illinois, on the Rock Island District. The UO Tower fs within the Bl.ue 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 7, 2012, BMWE's presented the claim asserting that Metra viQJated Agreement Appendix·0 1 Section 5, and the March 28, 2006 MOU by using theSW B&B Gang instead of the Claimants' Gang from the Rock Island B&B Gang No..1. The Claimants maintained thatthework was exclusively resewed to the·Rock Island B&BGang No.1. As remedy, BMWE requested that the Claimants be compensated 16 hours each at the straight time rate.
On July 23, 2012, the Carrier dented 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 lsrand turntable.
On September 6, 2012, BMWE appealed Metra's clairn denial asserting that the work belonged to the Claimantsbecause the UDTower was within the Rock Jsland District boundaries. 8MWE argued that Rock Island B&B Gangs hadtraditionally a.nd exclusively performed this work within the Rock Island District.
On October 9, 2012, Metra denied BMWE's appeal. Metra argued that Mar h 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 Tower work.
PLB5564
Case No. 58
Award No. 58
On August 16, 2013, the claim was conferenced without resolution. 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:
APPENDIXO OVERTIME
AGREEMENT between the Northeast Illinois Regional Commuter Railroad Corporation and the Brotherhood of Maintenance of Way Employes
IT IS AGREED:
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.
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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 the LaSalle Street Crew;
M.P. 0.4 to Joliet is normally assigned to Blue Island Gang No. 1; and C.W.I.
and the Heritage Corridor are normally assigned to Blue Island Gang No. 2. These gangs handle all B&B work on the district, including planned and emergency overtime. Any such overtime, either planned or emergency, is offered to thegang normally assigned to that area. Senioritywithin individual gangs is always honored.
Any overtime help for LaSalle Street Gang would first go to Blue Island Gang 1 and then to Blue Island Gang 2.
Any overtime help for Blue Island 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.
* * *
3
Sections. Southwest Service - B&B: One gang handles aU work, including all pvertime, on this district If additional ass•stance is nef3ded, Blue Island Gang$ 1 & 2 will be cailed in seniority order. If additional employees are still required. other Rock Island B&B emptoyees willbe cafledJn seniority order.
*
The March 28, 2006 MOU:
This is in regard to the application of thtJ General Agreement between the Northeast lllinofs Regional Comrnuter Railroad Corporajion and thfj Brotherhood of Maintenance of Way Ernployes, particularly in regard to the assignment of district gangs. ft i$ understood that such gangs. wiH ba
establishedfor thepurpose ofperforming work onaparticulardistrictandwill be assigned to perform work only Withrn that distrfct, except in the event of an emergency. The. delineation of districts as set forthin Appendix "O" will govern in the application of this letter of understandin.g. In,other words1 the system will be divided into four districts: Rock Island, Metra Electric, MilWaukee, and Southwest Service.
fn other than emergency situations, arrangements may be made for temporary cross-district assignment of ngs by agreement between the parties.
* *
DISCUSSION AND FINDINGS
BMWE asserts that Appendix O and the March 28, 2006 MOU cfearly and unmistakably establish seniority boundaries andwork rights ofemployees so that thework in a district willbehandledbythegangs inthat district. For this reason, BMWE argues that
the Claimantswereentit dtothework on the UOTowerwhichtheCarrierassignedto SW
B&B Gangemployees inviolation of the Agreement and the MOU. BMWE argues the welf estabUSh principle that where seniority ls 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 as$erts that the Board lacks jurl$dlction to resolve the dispute because BMWE has attempted toprogress multiple claims for connected work on multiple days. The Carrier argues that the Board has 4 claims for one incident before it including Cases 63, 54, 55 and 68. The Ca.rrier argues the ca$es involve the same facts and arguments covering differentdates. The Carrier argues thatthis isimproper claim splitting1 also knownas claim stacking, ofa singleincident into separate days andseparate portions of thesamework. The Carrier concludes that this a significant procedural defect such that the Board lacksjurisdicticm to resolvethe dispute and requests dismissal of the claims.
Second, the Carrier asserts that BMWE has not met the burden of proof to prove the claimbecause the Organization merely quotes the Rufe withoutproving that the Rock Isrand B&B Gang had rights to beassigned the Ub Tower work over the SW B&B Gang. Metra a.lso collaterally argues that, at thetime of the claimt the Rock Island B&B Gang was working on the Blue Island turntable. For this reason, the Carrier says the Rock Island B&B Gang could notbe assigned to the OD Tower security improvements.
Finally, Metra asserts that the Agreement was notviolatedbased on theemergency exception in the Agreement and the March 28, 2006 MOU. Metra argues that there is no Agreement or MOU language which requires the Carrlerto exclusively reserve emergency work to the Rock Island 8&13 Gangs. The Carrier says that the UD Tower work involved security improvements to protect the pubic thereby constituting emergency work. Metra againargues that, sinceth.e Rock Island B&BGang No. 1 wasworking ona long term Blue Island Facility turntable, then theCarrier was within its righttoassign this security work to the SW B&B Gang. Further, Metra eoncludes an emergency will 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.
Claim Splittfng
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 handling record shows that the Claim 53 April 1Bt 2012 work involved installation of 2 windows 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 installation of posts, fencing and gates. The Claim 58 April 10, 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 advanced on 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 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 UD Tower.
For these reasons, the Board finds that BMWE has not engaged in claim splitting or claim stacking.
However, arguably, to achieve efficiency in the on property claim handling and in the Board's dispute resolution processes, the Parties' consolidation of these 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 Board must take these claims as they find them presented by the Parties.
For these reasons, the Carrier's 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 not proved that Rock Island B&B Gang's right to the UD Tower work. The Carrier also argues that the Claimants1 assignment to the Blue Island turntable work prevented assignment to the claimed work and required the Carrier to assign the UD Tower work cross-districts boundaries to the SW B&B Gang.
The plain, clear andunambiguous language of Appendix 0, Section 5 provides that the Claimants' Rock lsland B&B Gang No. 1 is to handle all B&B work on the Rock Island district, including planned andemergency overtime. The UD Tower is located onthe Rock Island district. Furthermore, the March 28, 2006 MOU's plain, clear and un1;1mbiguous language provides specifically for the assignment of distriot gangsstating·in pertinentpart,
gangs will be established forthepurpose of performing work on a particular district and will be assigned to perform work only within thatdistriet, except in the event of an emergency. (Emphasis added).
The undisputed facts establish the UD Towerwork was work within the Claimants' Gangs' district. Pursuant to theproven facts, when read together, Appendix 0, Section 5 and the March 28, 2006 MOU require that the Carner wm assign all B&B work, including planned or emergency overtime, to the Clatmants1 Gang aog that such work will be assigned only tp the Gang Within the UDTewer's districtboundaries whichis,inthis claim, 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 wot.1ld allow the SW B&B Gang toperform theUDTower work in cases other than an emergency, suchasthe Rock Island Gang No. 11a work on the Blue Island turntable, with BMWE;s agreement However, there is no eviderice in the on property handling that the Carrier had an,igreementwith BMWEregarding a cross-district assignment of the claimed work.
For these reasons, the Board finds that the Carriers assignment of the SW B&B Gang to the UD Tower work. based only on the Claimants' assignment to the B.lue.Island turntable work without BMWE's agreement, i$a violation ofthe Agreement and the March 2a12006 MOU.
However, the Carrier also asserti:, as its third defense that an emergency existedr which is a recognized exception to the Agreement and the March 28, 2006 MOU work assignment rules.
The Emergency Exception
It is well-estabtlshed in NRAB Awards that when the Carrier asserts that an emergency exists. to justify deviating fromthereqµirements of the Agreement1 the Carrier isobligaUidto present sufficient evidence establishing anemergency existed. Specifically,
the Carrier.must demonstrate that itsextraordinary action of deviating from the governing work place rules was necessary to preserve property and to protect Hfe and limb. In this regard, it is reasonable to find a record of some actions or reactions recognizing the emergency in announcements ofordeclarations oftheexistence ofthe emergency by the
Carrier. In addition. it is reasonable to expect that out of a sense of urgency, an emergency would resulUn rapid deployment of farcesonovertime assignments. However, the record contains no evi.dence of actions, reactions, emergency announcements or emergency declarations. by the Carrier. The record alsu shows thatthe Carrier assigned the UD Tower work with straight time pay during regular shift times which does not
ma.nifest a sense: of urgency on the Carrier's part indicating an emer ency.
In this dispute, basedon the totality ofthe circumstances andevidence, thereis no evfdence of an emergency before the Carrier's assigned the SW B&B Gang to the UD Tower work. Th record shows that the Carrier's assertion tMt an emergency existed regarding the UD Towerworkarose during the on property handling. For this. reasonr the Carrier's emergency exceptlon defense is. post hoc of BMW.E's claim fifing.
The Board finds these facts establish a post hoc emergency defense by the Carrier amounting to an .excuse for the Carrier's 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 reason$, the Board finds the Carrier violated the Agreement and the March 28; 2006MOU in the assignment of the SW B&B Gang to the UD Tower work.
Astoremedy, the Board also finds that but for the Carrier's violation, the Claimants would have performed the work and been paid straight time for the claimed hours. Toerefore, the Carrier must make the. ClaJmants whole with 2-hours straight time pay,
BMWE's claim i$ sustained.
Public Law Board Advocate BMWE-IBT
Neutral Member:
Sean J og;;;,:sq.
Sean J. Rogers & Associates. LLC
Leonardtown, Maryland
December 21,.2016