PUBLIC LAW BOARD NO. 5564
Case No. /Award No. 99 Carrier File No.: 8-2019-5 Organization File No.: 19 01 04 (001)
Claimant: R Snisko
--------------------------------------------------------------------------------------- NORTHEAST ILLINOIS REGIONAL )
COMMUTER RAILROAD CORPORATION )
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-and- )
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BROTHERHOOD OF MAINTENANCE )
OF WAY EMPLOYES DIVISION- IBT )
RAIL CONFERENCE )
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STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Carrier violated the Agreement when it allowed junior unassigned employe R. Carroll to work as a Bridge and Building (B&B) Mechanic on the Galewood Gang #3, at the exclusion of the senior employe R. Snisko on January 4, 5, 6, 7, 11, 12, 13, 14, 25, 26, 27, 28, 29, 30, February 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14 and 15, 2019 [System File 19 01 04 (001)/8-2019- 5 NRC].
As a consequence of the violation referred to in Part 1 above, Claimant R. Snisko shall now be compensated ‘… two hundred sixteen (216) hours at the regular rate of pay, ninety-three (93) hours at the time and one-half rate, and twenty-eight (28) hours at the double time rate of pay for a B&B Mechanic which totals $12945.79.’ (Emphasis in original) (Employes’ Exhibit ‘A-1’).”
FACTS:
Claimant and furloughed employes Martinez, Sheehan, Clubb and Carroll were called for overtime snow removal service on January 1, 2019 at Blue Island.
Following the service on January 1, they were informed that if their service was required, they would be contacted. The Carrier contacted junior employe R. Carroll
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who subsequently reported for duty as a Group A, Rank 3 Bridge and Building (B&B) Mechanic at Galewood beginning January 2, 2019. The Carrier did not contact the senior Claimant until January 18, 2019.
Following contact, Claimant worked on the Galewood #3 Gang as a Group A, Rank 3 B&B Mechanic from January 18 through 23, 2019, after which time the Carrier reduced the number of mechanics at Galewood. Claimant was advised via phone that he was to return to furlough status after Wednesday, January 23, 2019.
Applicable provisions of the parties’ Agreement state as follows in pertinent part:
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Rank 1 - Foremen
Rank 2 - Assistant Foremen Rank 3 - Mechanics
Rank 4 - Assistant Mechanics
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When reducing the number of employees in a gang, or at the point where the reduction is to be made, seniority shall govern, first
furloughing the junior men in each rank to be reduced. When entire gangs are abolished the foregoing procedure will not be followed.
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An employee affected by force reduction or abolishment of a gang shall, within in a period of ten (10) calendar days from the date of his displacement, exercise his seniority rights over any junior employee. An employee failing to comply with the above will forfeit his rights to place himself in any rank in which he holds seniority, except by successfully bidding on and being assigned to a bulletined new position or vacancy, or by resuming active service through recall to duty in accordance with the provisions of paragraph (g), below.
If a furloughed or displaced employee elects to displace a junior employee, he must notify the appropriate official of the Carrier before the change is made, giving the name of the employee to be displaced and the date he will report. This procedure can, if necessary, be handled by telephone in order that the employee to be displaced can be given as much advance notice as possible by the Carrier, but not less than one workday. The Carrier will give full cooperation in assisting employees to determine and exercise their displacement rights. All employee notifications shall be confirmed in writing.
Employees temporarily out of the service or serving in lower ranks will be given the opportunity to return to the service or to such higher rank in the service in which they have established seniority, in the order of their seniority, to fill temporary vacancies or positions. * * *
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(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 the rank involved shall have preference to such overtime if they so desire.
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APPENDIX O 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. Call Rule 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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CARRIER POSITION:
Claimant relinquished his entitlement to the contested work when he failed to exercise his rights under Rule 9(e) of the General Agreement to displace a junior
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employee when he was placed on furlough, and he failed to indicate his availability for snow duty work.
Acting Chief Engineering Officer C. Krakar erroneously chose to compensate Claimant for a few of the dates identified by the Organization (January 4-11, 2019), not because Claimant had a superior entitlement to certain work over junior employee Carroll, but because the Carrier had recalled other junior employees from furlough ahead of Claimant in violation of Rule 9(f) due to a typographical error. In other words, in the course of investigating the Organization’s allegations, the Carrier identified and voluntarily corrected a different Agreement violation which was not connected to the claim made by the Organization here.
The Organization’s theory of the claim relies on the idea that it is an Agreement violation in and of itself for any junior employee to continue to be in service while a senior employee is furloughed. In contrast to such a theory, the Agreement acknowledges that there may be situations where that would be the case; Rule 9(d) provides a mechanism by which an employee may displace a junior employee within 10 days of being affected by a force reduction.
In this case, the Organization failed in their burden of proof, as they have not shown that Claimant exhausted all available options to remain in service.
ORGANIZATION POSITION:
As the Organization sees it, the Carrier violated Rule 9 of the Agreement when it failed to recall employes in seniority order beginning January 4, 2019, and improperly furloughed the senior Claimant prior to furloughing junior employe R. Carroll beginning January 24, 2019. Claimant had a preferential right to the work over the junior employe and was deprived of earning opportunities he otherwise would have had.
Claimant had more seniority as a Group A, Rank 3 B&B Mechanic than employe R. Carrol, and was fully qualified. As a result, the Organization maintains he was entitled to be assigned to the temporary mechanic position at Galewood over employe R. Carroll.
DECISION:
The Organization is correct that Claimant should have been assigned the contested work due to his greater seniority. However, the parties anticipated the possibility of such a lapse when they drafted Rule 9. Claimant was given a contractual, 10-day option of exercising his seniority rights over junior employe Carroll. In negotiating
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this right, the parties did not invalidate the applicability of Rule 9, but gave affected employes rights to rectification of potential violations. These rights accrue immediately upon force reduction, give the employee the right to actually perform and be compensated for the contested work to which he has seniority rights.
The Agreement is unequivocal:
An employee failing to comply with the above will forfeit his rights to place himself in any rank in which he holds seniority, except by successfully bidding on and being assigned to a bulletined new position or vacancy, or by resuming active service through recall ….
Failure to timely exercise this right is expressly deemed to constitute waiver of the affected employe’s right to the work because the employe could have rectified the situation entirely at the time the work was ongoing. Claimant failed to exercise this option, allowed the work opportunity to lapse, and in so doing, waived his right to the contested work.
AWARD:
The claim is denied. July 13, 2023
Patricia T. Bittel, Neutral Member
John Schlismann, Employe Member
Sylwia Dutka, Carrier Member