PUBLIC LAW BOARD 5664

In the Matter of Arbitration between:

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION - IBT RAIL CONFERENCE

and

NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION

In the Matter of Arbitration between:

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION - IBT RAIL CONFERENCE

and

NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION

Case No. 60

Award No. 60

THE ORGANIZATION'S STATEMENT OF THE CLAIM

This Decision resolves the,Organization1 s claim as follows:

1. The Carrier Violated the Agreement when it assigned Track Subdepartment employes instead o.f Bridge and Building (B&B) .. Water Service Subdepartment employes W, Garibay. C. Otero, M. Vasquez, H.Falfad, S. Kmiec. D. Petrie, S.Alexander, A Mieszanek.

   W. Dehn, M. Arnold and G. Farrington to inspectvariousbridges and culverts on the Milwaukee North and Milwaukee West fines on April 17, 18 and 19, 2013 (System Fife C-13-M-0020-1108-21-655 NRC).

   
   

2. As a consequence of the violation referred to in Part 1 above, Claimant W. Garibay shall be compensated eight (8) overtime hours and thirteen and one-half (13.5) double time,hours at his respective rate of pay: Claimants C. Otero, M. Vazquez, H. Fallad, S. Kmiec, D.

Petrie·, S. Alexander, A Mieszanek and W. Dehn shall be

compensated eight (6) overtime hours and thirteen (13) double time hours at their respective rates of pay; Claimant M. Arnold shall be compensated seven and one..half (7.5) overtime hours, and thirteen

(13) double time hours athis respective rate of pay; and Claimant G. FarringtQn shall be compensated seven (7) overtime hours and thirteen (13) ciouble time hours athis respective rat(:) of pay.

STATEMENT OF THE CASE

Basedonthe 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 LaborAct, as amended, and that this Boardhasjurisdictlon overthe Parties and tile qispute.

This dispute is between the Brotherhood of MaintenaF1ce 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 Rules 1, 2 and 3 when on April 17, 18 and 19, 2013, following heavy rainfaH and flooding the Carrier as$igned Track Section Crews toinspect bridges andculverts onthe Milwaukee North and Milwaukee. WestLines, BMWE asserts that the Carrier failed to notify the C1aimants of this available overtime and double: time work in violation ofthe Agreement Rules.

On June 11, 2013, BMWE submitted the claim asserting that Metra violated the Agreement Rules 1, 2 and3 as described above. BMWE's claim asserts that, rather than use the Bridge and Building (B&B) Sub-department Claimants for the track inspection, instead Metra utilized Tra-ck Sections Crews thereby denying the Claimants the overtime and double time opportunity without notice. BMWE asserted that the Claimants lo.st out

on a total of as.5 hours Qvernme pay nd 143.5 hours double time pay,

On August 22, 2013. Metra denied the claimstating that "the work described in this claimeustomarily belongs totheTrack Inspectors, Whoinspect tracks for anyproblems and defects.''

On September 30, 2013, BMWE appealed the denial asserting that Metra did not dispute that it failedto notify the claimants of the available overtime work on April 17, 18 and 19, 2013. BMWE argued that theinspection and maintenance of bridges and culverts "clearly flows to employees within the Bridge and Building (B&B) Sub"department under Rule 3."

On November 18, 2013, Metra denied the appeal asserting that BMWE failed to provide the amount of grieved overtime and failed ta state if the Claimanfs were ready or available for overtjrne.. Metra also asserted that the Claimants were not called for the overtime beCi!use ttiey were not entitled to the work. Metraargueq there was n<> ba$is for BMWE's claim and that the work was not exclusive ta the B&B Sub,.,department and so, BMWEfailed to prove an Agreement violation. Metra noted that the Northeastern Illinois region ertenced heavy rainfall and flooding over a short time which prompted the Carrier's emergency response to inspect the bridges and culverts.

Ort Aprif 23, 2014, the claim was conferenced without resolution. However. the claim processing did not end. On May 5, 2014, BMWE submitted 3 signed statements from B&B Sub-department emptoyees stating that they had worked to clean and clear numerous; bridges andculverts in the past.

The cli.irn wa$ not resolved. Thereafter, the dispute was docketed with thi$ Board

foradjudication.

The applicable work rules and policies provide:

RULE 1. $COPE.

1. These Rules govern the hours of servfce, rates of pay, and working condition$ ofallemployeesinthe Maintemmce of Way Department, as li$1:ed by Subdepartmenl in. Rule 2, and other employees who may $Ubsequently be employed in said Department, represented by the B1:otherhtlod of Maintenance of Way Employee.

   * * *

   
   

2. Employees included withtn the Scopeofthis Agreement shallperform au work in connecticm with the construction, maintenance" repair, and dismantling of tracks, roadbeds, structures, facilities., and appurtenances related thereto located cm the right-of-way or used in the operation of the Carrier in the performance of suburban pt,tssenger service.

   
   

   *

   
   

   RULE 2'.. SUBDEPARTMENTS - SENIORITY GROUPS AND RANKS. (a)

   The seniority rights of employees will be confined to subdepartments and groups as provided hereinafter and shall extend throughout the Carriers entire suburban passenger operation, which on the effective date of this Agreement iscomprised of theterritory from Chicago to Joliet (excluding the Heritage Corridor but including the CWl Branch), Chicago to Big Timber* Chicago to F.ox Lake, Chicago to University Park (including the SQuth Chicago Branch andthe Blue Island Branch), Chicago to Manhattan between MP 8 at 74th Street and MP 40.9,. and th$ yards at Western Avenua, Fox Laket Elgin and Antioch,The rank sequence ofemployeeswithi:nthev r.ious

   groups $hall be as shownbelow,. the lowest rn.1mber designating tne highest

   rank in the group.

   
   

   *

   Track Subdepartment

   Group A

   Rank 1 • Track Inspectors Rank 2 ., Foremen

   Rank 3 ... Assistant Foremen Rank 4 - Clean-up Foremen Rank 5 - Trackmen

   • *

   
   

   Bridge and Building - Water Service Subdepartment

   Group A - Bridge and Bu'irding

   Rank 1 - Foremen

   Rank 2 - Assistant Foremen Rank 3 - Mechanics

   Rank 4 .. Assistant Mechanics

   
   

   * *

   
   

   RULE 3. CLASSIFICATION OF WORK. The denominations within the various subdepartments listedbelow setforth the type of wc,rk that shaUbe performed by employees assignl!d to each respective subdepartment and

   group and the pnrnary duties of the employees assigned to classifications

   
   

   within each group.

   
   

   * *

   Track.§ubgepartment

   
   

   Group A - Employees assigned to perform the work .involved fn the construction, maintenance, repair .·am:t dismantling of track and roadway, and any other retated work generaUy recognized asbeing Maintenance of Way work in the Track Subdep$rtment.

   Bridge.and Building .. Water $ervic& Subdepartment

   Group A - Bridge and Building - Employees assigned to perform the work

   involved. in the construction, maintenance. , repair and dismantling of all

   buildings, bridges, andother structures, facilities andappurtenances related thereto., regardless of materl$ content, except the work in connection therewith thatsh$11 be performed by Group B -Water Service.employees in the performance of their work.

   * *

   
   

   DISCUSSION AND FINDINGS

   
   

   The facts are not disputed, Following an extraordintary rainfall and local floQding, which affected Metra's Milwaukee North and Milwaukee West Lines, the Carrier assigned Track Section Crews to patrol andinspect bridges andculverts on the right of way on April 17, 18 find 1ij, 2013. The assigned c;rews' resulting compensation included premiumpay, both overtime and double time.

   
   

   There is no evidence that the Carrier declared an emergency atthe time. However, the on property handlinlJ amply establishes the need for urgency and the presence of serious safetyconcerns prompting.theinspection project based onthe extraordinary rainfall and local flooding.

   
   

   BMWl::1s initia, June 1'1, 2013 claim asserted that the Carrier failed to notify the Claimants of the avalfable overtime and double time work resulting in a violation of the

   
   

   
   

   Agreement

   Award No. eo

   
   

   The. Carrier's August 5, 201.3 .claim denfal asserted the work customarily befongs to Traci< lnspectofl?, Whict) issupported by Agr ment Rule 3, whichstate$ th$t Track Sub department employees,

   
   

   perform the work involved in the construction, maintenance1 repair an.d dismantling of track and roadWay, and any other related work generally recognized asbeing Maintenance ofWaywork i.n the Track Subdepartment

   
   

   BMWE's ensuing September 30, 2013 claim appeal dido<>t ad.d new information to the record or describe the proof necessary to sustain a finding of an Agreement Rule violation.

   
   

   rhe B rd needs mention that BMWE's May 5, 2014 letter includes three statements fromB&B Sub-0epartment employees who state that they cleaned brush, drift and river buildup frombridges andculve.rts challenging Metra's assertion thaUhe claimed

   work customarily belongs to Track Inspectors. TheBoard finds that these statements are anecdotal eyidence atbestandarenot pr9bative ormaterial regarding the April 17, 1a and

   19-, 2013 claimed work.

   
   

   Based on the onproperty record, the Board finds that BMWE has notestablished violations of the Agreement Rules 1, 2 and 3. For this reason, the claim is denied.

   
   

   Award No.·oo

   AWARD

   
   

   BMWE's claim Is denied.

   
   

   

   For the Organization:

   

   (L ·..

   Ry i(j

   Public l..aw 8oJrd Advocate

   BMWE-IBT

   
   

   Neutral Member:

   
   

   

   Sean J. Rogers &.Associates, LLC

   • Leonardtown. Maryland

December 21. 2016