BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
MASSACHUSETTS BAY COMMUTER RAILROAD
Case No. ?l9
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that
1. Ile her violated the current Agreement, specifically the Scope Rule when it
failed to properly assign Scope covered work on the claim dates of August 18, 19
& 20, 2009 and September 11, 17,18 and 22, 2009 to the Claimant, William
Parziale.
2. For this violation the Organization is requesting that the Carrier be required to
compensate Claimant 8 hours for each claim date at his B&B Mechanic overtime
rates of pay due to violation of the Rules cited for a total of 56 hours."
The Organization filed the instant claim on behalf of the Claimant, alleging that
the Carrier violated the parties' Agreement when it assigned certain Scope-covered work
to ARASA Foremen, rather than 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 was improperly assigned to ARASA Foremen and other
Mechanical forces in violation of the Agreement's Scope rule, and because BMWED
members exclusively have performed the work at issue, providing track protection for
outside forces, since 1987. The Carrier contends that the instant claim should be denied
in its entirety because the work in question does not fall within the Agreement's Scope
Rule, because the Carrier's practice has been to train and utilize all Engineering
Department field employees and employees in other departments to perform such work,
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and because the work in question is not recognized as having been ordinarily performed
by BMWED employees, although they have performed such work at tines.
The patties being unable to resolve their dispute, this matter came before this
Board.
This Board bas reviewed the record in this case, and we mad that the Organization
has failed to meet its burden of proof that the Carrier violated the Agreement when it
failed to assign the work at issue to the Claimant. Therefore, the claim must be denied.
Rule 1 states, in part:
While it is not the intent of the parties to either diminish or enlarge
the work being performed in the territory under this Agreement, the
work generally recognized as work ordinary performed by the
Brotherhood of Maintenance of Way Employees as it has been
performed traditionally in the past in that territory will continue to be
performed by those employees. Recognizing that it is extremely
difficult to ensure strict compliance to the agreements negotiated by
other patties and fat management to be fully aware of the intricacies
of the past practice at each paint, the parties have inserted the ward
"ordinarily" into the above paragraph. The use of the word
ordinarily is designed to preclude Scope/Classification Rule based
claims and or grievances which anise as a result of either the
assignment of Maintenance of Way employees to perform work
customarily performed by other crafts or the erroneous assignment
of other crafts to perform work customarily performed by
Maintenance of Way employees at that location.
In this case, the Carrier has shown that it has been its practice in the past to train
and use all. Engineering Department field employees as well as Roadway Worker
Protection employees to perform the work at issue. Although the Carrier admits that the
BMWE employees have been used to provide protection for other Engineering
Department personnel, the Carrier contends, and there is no showing to contradict it, that
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times were of limited duration. Consequently, the work is not generally recognized
as "work ordinarily performed by the Brotherhood of Maintenance of Way Employees."
For all the above reasons, the claim must be denied.
AWARD:
The claim is denied.
CARRIER MEMBER.
DATED: t t !1? ll
P L MEYERS eufral Member
-` ~4
ORGANIZATION MEMBER
DATED: 1'`~/A/
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