BEFORE PUBLIC LAW BOARD NO. 6915
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
DIVISION - IBT RAIL CONFERENCE
and
CN -
WISCONSIN CENTRAL RAILROAD
Case No. 54
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
1. The Carrier violated Rule 13 of the Agreement when it supplanted its existing
workforce on a rest day in an effort to deny an overtime work opportunity for the
Claimant, by assigning a non-agreement employe to perform overtime flagging
work in connection with the performance of Maintenance of Way work on the
Superior Subdivision from Mile Post 407.4 to Mile Post 411.75 between 9:15
A.M. and 2:30 P.M. on September 17, 2009 (Carrier's File WC-BMWED-200900067).
2. As a consequence of the violation referred to in Part 1 above, Headquartered
Foreman Mike Bratina shall be compensated for five and one-quarter (5.25) hours
at the applicable headquartered foreman time and one-half rate of pay for this lost
work opportunity."
FINDINGS:
The Organization filed a claim on the Claimant's behalf, alleging that the Carrier
violated the parties' Agreement when it assigned an outside contractor employee to
perform overtime flagging work in connection with the performance of Maintenance of
Way work, instead of assigning this flagging work to the Claimant. The Carrier denied
the claim.
The Organization contends that the instant claim should be sustained in its entirety
because the work in question is contractually reserved to Carrier forces, because there
was no exception under Rule 13 L that existed on the claim date that would permit the
Carrier to assign the work in question to an outside contractor employee, because the
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Carrier's use of an outside contractor employee to perform the work in question denied
the Claimant an overtime work opportunity, because there is no merit to the Carrier's
defenses, and because the Claimant is entitled to the requested remedy. The Carrier
contends that the instant claim should be denied in its entirety because the Organization
failed to meet its burden of proof, because the Organization is attempting to obtain
through arbitration what it failed to obtain through bargaining, because the work in
question is not mentioned in the contractual rule defining the scope of work, and because
no remedy is due.
The parties being unable to resolve their dispute, this matter came before this
Board.
This Board has reviewed the record in this case, and we find that the Organization
has failed to meet its burden of proof that the Carrier violated the Agreement by allowing
a subcontractor to perform flagging work on September 2'7, 2009. Therefore, the claim
must be denied.
First of all, the Scope Rule contains no specific reference or language regarding
flagging or providing protection for contractor forces. Hence, that work is not preserved
exclusively for the Organization-represented employees. There is no requirement that the
Carrier only use its own employees represented by the Organization to perform that type
of work.
Moreover, Rule 23, Paragraph K, allows the Carrier the unilateral right to contract
out work within the scope of the Agreement. Although the Organization has performed
the track protection work in the past, there is nothing in any of the Agreements that are in
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evidence that gives the work exclusively to these Organization-represented employees.
Since the Organization bears the burden of proof in cases of this kind and has
failed to meet that burden, this Board has no choice other than to deny the claim.
AWARD
:
The claim is denied.
CABER AMBEI
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DATED:
3
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P R R. EYERS
N~ut.~f Member
ORGANIZA N MEMBER
DATED: G~- .~'! °'
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