PUBLIC LAW BOARD NO. 7738
Case No. 24 Carrier File No.: 10-13--0018 Organization FHe No.: C-10.J010-1
Claimant: M. Yates
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BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYEES DIVISION - IBT RAIL ) CONFERENCE )
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BNSF RAILWAY COMPANY )
(former Burtlngton Northern Railroad Company) )
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STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
"The Agreement was violated when the Carrier assigned Truck Driver
C. Jones to perfonn Group 2 Machine Operator work (operate a
Backhoe) in connection with road crossing repair work at Miles Post
211.57 on the Brookfield Subdivision, Chicago Division on August 14,
15, 16, nd 17, 2012 (System File C-13-J010-1/10-13-0018 BNR).
As a consequence of the violation referred to in Part 1 above, Clamant M. Yates shalt now be compensated for thirty-two (32) hours at the applcable Group 2 Machine Operator straight time rate of pay.•
FINDING
The Board finds that the Parties herein, Carrier and Claimant are within the meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction of the parties and the subject matter.
The Claimant. M. Yates holds seniority inthe Group 2Machine Operator. inthe Roadway Equipment Sub-department. Yates is regularty assigned such duties. Mr. C. Jones has seniority as a truck driver in the Track Sub-department and is regularly assigned these
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duties. On August 14,15, 16, and 17, 2012, Mr. Jones was assigned to perform routine Group 2 Machine Operator work at the Brookfield Subdivision, Chicago Division. The Organization submitted a claim on behalf of the Claimant and alleged the assignment of machine operator work to Mr. Jones was a violation of the Collective Bargaining
Agreement
The Organization maintains that Mr. Jones had no seniority as a Group 2 Machine Operator. The Organization insists that the failure to assign a Group 2 Machine Operator to operator a backhoe in connection with road crossing repair at the Brookfiekf Subdivision on the dates in question was a violation of the Agreement. The Organization specifically points to Rule 1 Scope, Rule 2 Seniority Rights and Sub-Oepattment Limits, Rule 5 G Seniority Roster, and Rules 55 Classification of Work, as being violated. In
support of its position, the OrganiZation cites several NRAB Third Division Awards to
support their Interpretation of theabove Rules. As a remedy, the Organization, claims that the Claimant is entitled to be compensated for thirty two (32) hours of straight time pay.
The Carrier contends that the issue is an intra-craft dispute, thus the Organization must
establish that "the disputed work has been exclusively perfonned by the claimants on a system-wide basis." The Carrier states that the Organization failed to meet its burden to establish exclusMty or any past practices to support its claim. The Carrier cites Rule 78,
Intra-Craft Work Jurisdiction to support its position that it was permissible under the Agreement to assign the work to a Truck Driver in the Track Sub-Department. The Carrier insists that there is no Rule within the Agreement which reserves any work to employees and the Rutes cited by the Organization do not support their reservation arguments. The Carrier cites several past arbitral precedenta to support its position.
After careful review of the record, the Board finds that the evidence presented by the Parties establish that the Carrier violated the Agreement by assigning C. Jones to perform Group 2 Machine Operator work which involved road repair work, instead of the Claimant on the dates in question. Both Parties submitted a vvealth of documents and detailed analysis on several Rules in the Agreement. The evidence within the record supports the conclusion that the assignment of the Truck Driver from the Track Sub-department to perform road crossing repair work violated Rule 55. The Organization also cites Rules 1,
2. and 5 to support their position. But It iS Rule 55 which is dispositive of theissues before this Board. Rule 55 states, in part:
RULE 55 CLASSIFICATION OF WORK
P. Truck Driver-An employee assigned to primary duties of operating dump trucks, stake trucks and school bus type busses, except trucks having a manufacturer gross vehicle weight of less than 16,000 lbs. or any vehicle of the pick-up, panel delivery or special body type. (partial section)
N. Machine Operator-An employee qualified and assigned to the operation of machines classified as group,2,3,and 4 in Rule 5.
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The application of Rule 55 clearly defines the various classifications of 'WOrk. Specifically. Rule 55 P defines the work of Truck Driver and Rule 55 N defines the work of Machine Operator. Rules 1, 2, and 5 further illustrate how the division of work Is defined in the Maintenance of Way and Structure Department The duties of Truck Driver and Machine Operator are distinct and different The work tobeperformed was for a Machine Operator. Moreover, the work performed was work nonnally performed by Machile Operators and not Truck Drivers.
Without doubt, the Carrier has the right to make job assignments. However, there are limits. Those limitations have been negotiated by the parties and incorporated into a coDectlve bargaining agreement In this case, Rules 1, 2, 5, and 55 are among the provisions of the agreement which not only provides guidance on job classifications but also places some limitations on the Carrier's authority to make job assignments. Specifically, the language in the contract provides for classification of work. seniority rostets. and seniority rights. These provisions support the Organization's position that there are clear lines of demarcation between the work perfonned by the variOus crab. The contract doe& permit some marginal overlapping of job functions that are Incidental to the 'WOl1<: that each aafl is permitted to perform. But here, on the dates in question, the Truck Driver was performing the entire functions of a Machine Operator. In other words, the Truck Driver was performing tasks which are customarily performed by Machine Operators.
The Board findings are in line with other NRAB Third Division Awards.(See,Organization's Exhibit "E") For example, the application of these Rules were analyzed in NRAB Third Division Award 35961 where the fact pattem is almost identical tothe instant case. In that Award, the Board determined that the Carrier's assignment of Welders to perform track wor1<: viofatecf the contract. The Board stated that the "Organization carried its burden of proof and the Carrier's 'incidental work' defense was not persuasively established.· The Board in Award 35961 further held that"...the Carrier simply used the Welders to perform large scale track work of a magnitude ta which the Claimants were contractually entitled by custom, practice and tradition under Rules, 1,2,5, and 55 of the Agreement.• (See, Organization's Submission). Similar to the facts in this grievance, the Ca1Tier simply assigned the Truck Driver to perform the track work which customarily is assigned to employees in the Track Sub-department in violation of the Agreement.
The Board concludes that the Carrier violated Rules 1, 2, 5 and 55 of the Agreement, when It assigned a Truck Driver-Track Sub-department employee to peffonn Roadway Equipment Sub-department work on August, 14,15,16, and 17, 2012. The Board's findings are based onthe clear and plain language of Rules1, 2, 5 and 55.
The Carrier has argued that the Organization has failed to establish exclusivity under Rule 78. Rule 78 states:
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RULE 78. INTRA-CRAFT WORK JURISDICTION
Employees will be allowed to perform incidental tasks which are directly related to the service being performed and which they are capable of performing, provided the task are within the jurisdiction of the BMWE. Compensation shall beatthe applicable rate for the employee performing the service and shall not constitute a basis for any time claims by other employees. This provision Is not intended to alter the establishment and manning of work forces accomplished in accordance with existing assignment, seniority, and scope and classification rules.
It ls clear from Rule 78 that within the various crafts they may complete a task of each other solong as itis "incidental". The keyterm in Rule 78 is"incidental". Theplain meaning of the term relates to a function that is minor, not major but is demlnimls in nature. Hen,, the record reflects that the Truck Driver performed the entire functions of a Machine Operator. Clearfy, the work performed by the Truck Driver was not incidental to the work nocmally performed by a Machine Operator. There Is no doUbt that the Rule 78 permits the Carrier to make assignment& among the crafts, however, there are limitations.
The Board agrees with the Carrier that had this purely been a claim of exclusivity, the Organization would have had a heavy burden to carry as outl!ned in several of National Railway Adjustment Board Third Division Awards, as set forth in the Carrier's Submission. However, the Board has detem'lined that this case can also be resolved based on the restrictive language within Rule 78 which places limitation on assignments within craft positions, and Rule 55.
As stated in National Railway Adjustment Board Third Division Award, 40106:
Contrary to the position set forth by Carrier, because the disputed work is covered by 55, and is not •;nadentar to the work ofthe Machine Operators, the Organization neednot show the exclusive past performance byitsmembers. (Organization's Submission Exhibit "F")
The Board recognizes that the analysis in National Railway Adjustment Board Third Division Award. 40106 has not been totally accepted by other Boards. However, its logic and application to the fads here, lends itself to supporting a rational conclusion in this Award. The facts in this claim clearly show the Truck Driver performed tasks nom,aly assigned to Machine Operators. If employees are permitted to perform job assignments which arenotintheir classification, and thosetasks are not incidental to their classification, Rules 55 and 78 would be null and void. The Board concludes that whether it bases it findings on Rules 55 or 78, the evidence in the records clearty supports the conclusion that the earner is prohibited from unilaterally assigning work from one class of employees as designated under Rule 55, toanother class of employees, unless there is a permissible exception to the above Rule.
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The Carrier also argoea that the Organization falfed to prove that RuleS 1t 2. 5, and 5& reserved the workinqueetion totheClaimant The Carrier citecf severalon-property awards which deterinliled u.t tttese Rulesdonot reserve wod(for The BQard BQAHIS· that these Rules do not specifically state1hat certain work is reserved tocertain employees,
However a combination at these Ru!E!t can reasonably support the Organization's
interpretation that wodc perfonned by the Truck Driver viotated the agreement;.
The clear and plain language withfn the text of each Rule and U. combined appficatfoo of each Rufe support& the Organi%at1on·, interpretatk>n that the work was reserved· for Machine Operatota and not Ttudt OrtYerL Moreover, th& basic contract lnterpr-6on
prtnciple which appfiea here states that a·contract should not beinterpreted in • manner
which would result In a "t\arsh or nonsensical• outcome; Th& Canier'a interpretation of these Rulet$ would result in management having theauthority to:assign employee$ to pem>fffl any taskS ootaide their. cl8$$iticati0n In viotatlon of Rua. 55 and the seniority
Wlh respect todamag•at fequested in Part (2) of thedairn, the Board recognizes there are differentvfewa with respect to awarding slraight time and/or over time to a claimant. if tfleY worked during the time.in queetion. The Organization does,.not dispute that, the Claimant. ontbe da-. inqu-.tfon. Thi$ Board takes the view that the Clainant "10lt hla rightful oppQrtl;lnity to perfQnn the work anc;t is entitled to a monetary claim•.• Th, Carrier should not escape its responsl:Jility to make th• Claimant whole. Thia ih<::ludea compensating the Claimant for the right to work in hisclas$ as required by the Agreement. 8ase<f on theseprfndples. thhf 8oaJd follows the w,w cited in several NRAB
Awards which have reached similar CC>nekJ$ion$. see. NRAB Third AWE!rd 35477.
Patt (1).aod {2) of the Claim of th& Organization Is Granted.
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F.l 0. Weatherspoon, Neutral Member
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