PUBLIC LAW BOARD NO. 5606
PARTIES) BROTHERHOOOD OF MAINTENANCE OF WAY EMPLOYES
) DIVISION OF THE INT'L BROTHERHOOD OF TEAMSTERS
TO )
DISPUTE ) SPRINGFIELD TERMINAL RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier directed
Welder/Foreman R. Principato to report to Waterville, Maine to
pick up Boom Truck TC-2185 and assigned him to operate said
truck throughout the day on April 8, 2004, instead of Truck
Driver D. Emery.
2. The Agreement was further violated when the Carrier directed
Welder/Foreman R. Pincipato to report to Waterville, Maine to
pick up Boom Truck TC-2185 and assigned him to operate said
truck throughout the day of April 22, 2004, instead of Truck
Driver J. Kelleher.
As a consequence of the violation referred to in Part (1) above,
Claimant D. Emery shall now be compensated for eight (8) hours
at his respective straight time rate of pay and three (3) hours at his
respective time and one-half rate of pay.
4. As a consequence of the violation referred to in Part (2) above,
Claimant J. Kelleher shall now be compensated for eight (8) hours
at his respective straight time rate of pay and three (3) hours at his
respective time and one-half rate of pay. (Carrier File Nos. MW04-18 and MW-04-21)
FINDINGS:
The Board, after hearing upon the whole record and all the evidence, finds that the
parties herein are Carrier and Employee within the meaning of the Railway Labor
Act, as amended; this Board has jurisdiction over the dispute involved herein; and,
the parties were given due notice of hearing thereon.
As the Organization points up, this claim was initiated and handled as two separate
claims on the property because both claims involve what the Organization alleges
was the Carrier's decision to assign a Welder/Foreman to perform truck driver
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work in violation of current Agreement rules, namely, Article 2, Intra-Craft
Jurisdiction, and Article 5, Seniority Classes.
The Organization avers that on Wednesday, April 8, 2004, the Carrier instructed
Welder/Foreman Principato, who is headquartered at Rigby Yard, to report to
Waterville, Maine to pick up Boom Truck TC-2185, drive it to Rigby Yard, and
operate it for the day. It says Welder/Foreman Principato expended eight hours
straight time and three hours overtime in the performance of this truck driver work.
In the circumstances, the Organization maintains that since Claimant Emery was
assigned and working as a truck operator at Rigby Yard, and was readily available
and fully qualified to perform all truck driver work, that the Carrier improperly
assigned the work at issue to Welder/Foreman Principato.
As concerns the second part of the claim, the Organization says that on Wednesday,
April 22, 2004, the Carrier instructed Welder/Foreman Principato to go to
Waterville, Maine to pick up Boom Truck TC-2185, drive it to Rigby Yard, load the
truck with rail, and drive it to Dixfield, Maine on the Rumford Branch. It says
Welder/Foreman Principato expended eight hours straight time and three hours
overtime in the performance of this truck driver work and that furloughed truck
driver Claimant Kelleher thereby suffered a clear loss of a work opportunity when
he was not called from furlough for this work.
It is the position of the Organization that the work of operating a boom truck is
reserved to chauffeurs (truck drivers) under Article 5.1 6 and that the responsibility
of driving a boom truck is not directly related to the responsibility of a position of
Welder/Foreman. Further, the Organization says it is a well-established principle
that work is reserved to those employees who customarily perform such work in
accordance with the terms of applicable agreements.
The Carrier disputes the contentions of the Organization. It makes the unrefuted
statement that Claimant Emery was fully employed and worked as a chauffeur
(truck driver) on the date of claim. It also maintains that Clamant Emery has no
standing as an aggrieved employee in the present dispute, offering that Article 2.3 of
the current Agreement states: "Assignment of employees pursuant to this Article 2
will not constitute a basis for any claim by other employees, provided no employee
of the affected class or craft is furloughed."
In the circumstances, the Carrier submits that Claimant Emery was not an affected
furloughed
employee and, further, suffered no loss of income or work opportunity
as alleged since he was fully employed on the date at issue.
The Carrier also submits that Article 2.1 allows employees to perform ancillary
tasks that are directly related to or associated with the main task that the employee
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is capable of performing. Here it is noted that Welder/Foreman Principato is a
qualified truck driver.
The Carrier also submits that the claim as initially filed only alleged that "the
Carrier had Mr. Principato report to Waterville, Maine to pick up the boom truck,
TC 2185, and take it to Rigby Yard." It was never asserted in the claim, the Carrier
says, that Mr. Principato was, as the Organization here asserts, that he was
"assigned to operate said truck throughout the day." The Board would note,
however, that the initial claim, after saying, "take it to Rigby Yard," went on to
state "and work with it for the day." The Organization did not, however, submit
any probative support for the contention that Mr. Principato did, in fact, work with
the truck throughout the day.
In regard to Claimant Kelleher, the Carrier submits that it made every effort to
contact him for the job, but that it took several phone calls and a certified letter
before he responded to the Carrier. It says that Claimant Kelleher thereafter came
back to work as soon as a return-to-work physical could be scheduled and
completed. Accordingly, the Carrier says that since Claimant Kelleher failed in a
responsibility to make himself readily available for recall and work it may not be
held that he was a furloughed employee who was affected by the use of the
Welder/Foreman to operate the boom truck.
The Board finds lacking in merit argument of the Organization to the effect that the
fact Claimant Emery was working where the Carrier assigned him does not make
him an improper claimant. Nor do we find merit in argument that Claimant
Kelleher was not available because of the Carrier's unilateral requirement of a
return to work physical. Such a physical has long been recognized as a prerogative
of carriers as being necessary to a determination of physical fitness for employees
who have been off work for extended periods of time.
It being evident to the Board that the Organization has failed to meet a necessary
burden of proof in support of its contentions, the claim will be denied.
AWARD: Claim denied.
Anthony F. Lomanto
Carrier Member
North Billerica,_ MA
Dated Ic,2.3
e ,6
Robert E. Peterson
Chair & Neutral Member
Stuart A. Hulburt, Jr.
Organization Member
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