BEFORE PUBLIC LAW BOARD NO. 7566 CASE NO. 270
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION - IBT RAIL CONFERENCE
and
WISCONSIN CENTRAL LTD.
STATEMENT OF CLAIM
Carrier's File WC-BMWED-2019-00019
Claimant: G. Wenner et al.
"Claim of the System Committee of the Brotherhood that:
The Carrier violated the Agreement when it assigned non-agreement employes, who are employed by Stack Bros. Mechanical, Lakehead Constructors, Rybak Companies and Wren Works, to perform the duties of snow removal, plowing and cleaning switches, in and around the Proctor Yard, instead of assigning Messrs. G. Wenner, E. Kivisto and P. Lee thereto on February 6, 7, 8 and 11, 2019 (Carrier's File WC-BMWED-2019-00019 WCR).
As a consequence of the violation referred to in Part 1 above, Claimants G. Wenner, E. Kivisto and P. Lee shall now be allowed pay at the applicable rates of pay of each of their respective positions, for a total of fifty-two (52) hours at the applicable time and one-half and double time rates of pay."
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier or employee within the meaning of the Railway Labor Act as approved June 21, 1934.
Public Law Board 7566 has jurisdiction over the parties and the dispute involved herein.
The Organization maintains the Carrier violated the Agreement on February 6, 7, 8, and 11, 2019, by using Stack Brothers to perform snow removal. BMWE-represented forces customarily perform this work. This overtime opportunity should have been given to the BMWE-represented Claimants.
The Organization continues that although Rule 13K allows the Carrier to subcontract work, the significant limitations to the Rule require certain conditions precedent before work can be subcontracted. The limitations of Rule 13N provide:
N. The Company will not use the provisions of this rule to use outside contractors in a way that would supplant the use of the existing workforce during off hours and on rest days in an effort to deny the existing workforce overtime opportunities. This commitment does not require the company to call individuals from another location to perform work in lieu of using an outside contractor.
The Organization notes no suspension of operations due to labor dispute or emergency that temporarily reduced existing Maintenance of Way workforce. The Claimants possessed the necessary skills and were available.
The Carrier maintains that the Organization has not provided any evidence of a Rule 223A Overtime violation. The Carrier maintains that safety concerns were the reason for limiting the overtime opportunity for the Claimants.
The Organization must provide substantial evidence supporting the elements of the claim. Here, the Organization has established that subcontractors did work. The Organization has also shown that the work was customarily performed by BMWE employees and that this would have been overtime work for the Claimants. The Carrier admits Subcontractors performed the snow removal work.
The Carrier defends asserting an exception to the rule based upon safety concerns. To establish the defense, the Carrier must establish the safety concerns as an exception to the overtime rule. The Carrier makes a blanket assertion about safety concerns and employees being rested. However, the Carrier can cite no Agreement provision to support the defense. The Organization notes that unexpected occurrences regularly require long hours. This situation is no different than other situations.
The Organization has established the elements of the claim. The Carrier has not established the elements of the defense.
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Claim sustained. The Carrier is directed to comply with this Award on or before thirty (30) days following the Award date below.
Adam Gilmour Organization Member
Steven Napierkowski Carrier Member
Brian Clauss Neutral Member
Dated: December 18, 2024
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