PL$ 59
a
5
fwd
R. Tamez #52139 - 6 hours overtime
The Joliet Division employes shall be compensated as follows:
Track Foremen
E. Martinez =50945 - 4 hours overtime
A. Fadrowski =83149 - 4 hours overtime
E. Vargas #81621 - 4 hours overtime
M. Kranz #~; 1097 - 4 hours overtime
RMOs
A. Almanza =50596 - 6 hours overtime
G. Woodward =51057 - 6 hours overtime
R. Gallardo =52093 - 6 hours overtime
Trackmen
R. Almazen =51081 - 6 hours overtime
S. Ragin #52070 - 4 hours overtime
B. Whitt #·2086 - 4 hours overtime
D. Schoon X521 I 1 - 4 hours overtime
J. Cordoba = 52141 - 4 hours overtime
Super Truck Operators
K. Carstensen #52025 - 4 hours overtime
J. Slisz #5=027 --4 hours overtime
4. As a consequence of the violation referred to in Part (2) above, the Calling Area 2
employees shall be compensated as follows:
Track Foremen
A. Diaz #50_'86 - 8.5 hours overtime
E. Gutierrez =51070 - 6 hours overtime
RMO
M Travis #51090 - 6 hours overtime
Trackmen
R. Guzman #63955 - 8.5 hours overtime
B. Homberg =52133 - 6 hours overtime
K. Hilley #52138 - 4.5 hours overtime
R. Tamez #·2139 - 2 hours overtime
The Joliet Division employes shall be compensated as follows:
pL B
5905
Awa
Track Foremen
E. Martinez #50945 - 4.5 hours overtime
F. Fadrowski #83149 - 1 hour overtime
E. Vargas #81621 - 1 hour overtime
M. Kranz #51097 - 1 hour overtime
RMOs
A. Almanza #50596 - 4.5 hours overtime
G. Woodward #51057 - 8 hours overtime
Trackmen
R. Almazen #51081 - 4.5 hours overtime
S. Ragin #52070 - 4.5 hours overtime
B. Whitt #52086 - 1 hour overtime
D. Schoon 9521 1 1 - 1 hour overtime
J. Cordoba # 521-11 - 1 hour overtime
Super Truck Operators
K. Carstensen #52025 - 1 hour overtime
J. Slisz #52027 - 1 hour overtime
FINDINGS:
Public Law Board No. 5905. upon the whole record and all the evidence, finds and holds
that Employee and Carrier are employee and carrier within the meaning of the Railway Labor
Act. as amended; and. that the Board has jurisdiction over the dispute herein: and, that the parties
to the dispute were given due notice of the hearing thereon and did participate therein.
On July 13, 2000, the extra gang unexpectedly completed welded rail installation work on
the Western Subdivision. Its next scheduled job was at Plainfield on July 18. 2000. Carrier had
made arrangements with Plainfield officials for the work to begin on that date. Rather than
reposition the extra gang for July 14 and 17. Carrier used the extra gang to perform the tunrout
installation work that is the subject of the instant claims.
The Organization contends that Carrier utilized the extra gang to perform work reserved
to section forces in violation of Rules 3(a) and 3(f). Rule 3(a) provides:
All work in connection with the construction. maintenance or dismantling of roadway and
track, such as rail laying, tie renewals (except on open deck bridges); ballasting, lining
and surfacing track. including the dismantling and replacing of highway crossings and
walks required by such surfacing; maintaining and renewing frogs, switches and railroad
crossings; oiling switches; ditching, sloping and widening cuts; erecting, maintaining and
dismantling right-of-way fences
and snow and sand fences; mowing and cleaning; brush
cutting; patrolling and watching; loading, unloading and handling all kinds of track
material (or assisting Heavy equipment Sub-department employees in such work); and all
other work incident thereto, shall be track work.
Extra gang trackmen's work shall consist of work not customarily done by section or
maintenance gangs, such as reballasting. rail relaying (including tie renewals therewith),
tie renewal programs involving 10.000 ties or more, and field welding (joint elimination)
programs, bank widening, grade and line changes and emergency work occasioned by
inclement weather.
Carrier argues that the work in question is not reserved to section forces because Rule
3(a) refers to frogs and switches but not turnouts: because Rule 3(a) refers to maintaining and
renewing. not installing, switches; and because the Organization has failed to establish that
installation of turnouts has been performed exclusively by section gangs. Carrier also argues that
the claim is excessive because Rule 58 limits time claims to actual pecuniary losses.
Carrier's argument that Rule 3(a) encompasses frogs and switches but not turnouts is
based on the definition of "turnout" found in
The Track Encyclpedia (10"
edition), which
indicates that a turnout consists of components that include a switch and a frog. During handling
on the property, however, the Organization asserted that the terms "turnout" and "switch" were
used interchangeably on the property. Carrier did not dispute this assertion. Furthermore. the
record of handling of the claims on the property supports the Organization's assertion. The
claims. as filed by the General Chairman, referred to the work as the installation of two switches.
In denying the claims, the Chief Engineer also referred to the work as "new switch installation."
He did not distinguish between switches and turnouts. Similarly, when the General Chairman
appealed the claims denials, he referred to the work as installation of switches, as did the
Director Labor Relations in denying the appeals. It was only at the claims conference that Carrier
asserted that a turnout is something different from a switch. The record of handling fully
supports the Organization's undisputed assertion that on this property a switch includes a turnout.
Carrier, however, is correct in its observation that Rule 3(a) expressly refers to
maintaining and renewing switches but does not use the word installing in connection with
switches. Rule 3(a), however, does refer initially to "[a]Il work in connection with the
construction, maintenance and dismantling of roadway and track," and lists maintaining and
renewing switches as an example of such work. The crucial question raised by the claims is
whether the work of installing switches is, in the language of Rule 3(t), "customarily done by
section . . . gangs." If it is, then Carrier violated Rule 3(f) by assigning the work to the extra
gang.
In this regard, the General Chairman submitted a list of ten turnout installations
performed by section gangs between September 25, 1997, and October 24, 2000. Carrier
responded that on four of the occasions submitted by the Organization road gangs also worked on
the switch installations, and maintained that the section gangs did not exclusively perform the
1Awd 17
work. The Organization responded with an analysis
of
the Foreman's daily reports for the dates
questioned by Carrier which showed that the road gangs involved were engaged in road
surfacing, replacing bolted rail. and one hour working under a code for "guess report." Carrier
did not dispute the Organization's analysis.
Thus, it appears from the record developed on the property. that the Organization proved
that the installation of turnouts was work customarily done by section gangs and that, by
assigning the work to an extra gang. Carrier violated Rule 3(f). Accordingly. we turn to the
remedy.
Carrier maintains that the remedy sought is excessive and barred by Rule 58 which limits
recovery to actual pecuniary loss. We addressed Rule 58 in Case No. 1-4, Award No. ld. where
we held that actual pecuniary loss includes lost work opportunities but does not allow for penalty
payments. The instant claims present specific lost overtime opportunities on two specific dates.
Thus, those Claimants who were available for overtime on the two dates in question and were not
called suffered actual pecuniary losses and must be compensated therefor. However. Claimants
who were already working overtime or were otherwise unavailable to work overtime on the dates
in question suffered no actual pecuniary loss and any compensation paid them would be a penalty
barred by Rule 58. Therefore. we shall sustain the claims. but only as to those Claimants who
were available for overtime on the dates in question. As to other Claimants. the claims shall be
denied.
AWARD
Claims sustained in accordance with the Findings.
ORDER
The Board, having determined that an award favorable to Claimants be made. hereby
orders the Carrier to make the award effective within thirty (30) days following the date two
members
of
the Board affix their signatures hereto
Martin H. Malin. Chairman
- ~6
D.'M''. Gevaudan D. . artholoma
y
Carrier Member EmplNee Member
Dated at Chicago, Illinois, May 19. 2001.
-s_