PUBLIC LAW BOARD NO. 7738
CaseNo. 28 Carrier File No.: 11-12.0274 Organization File No.: T-0-411l•W
Claimams: G. Kudrna and J. Syverson
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CONFERENCE )
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(former Burlington Northam 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 failed to assign Claimants G. Kudma and J. Syverson to work with Steel Gang RP-06 between Berhold, ND and Wheelock, NO on April 23,2012 and continuing until June 2, 2012 and instead assigned employees E. Wald T. Iverson and C. Ronglein (System File T-0-4118-W/11-12- 0274 BNR)
As a consequence of the violation referred to in Part 1 above. Clamants G. Kudrma and J. Syverson shall now• ... each receive all hours worked by the Mobile welding crew with pay to be at claimant's (sic) overtime rate of pay for the hours that they was (sic) not allowed to work.' (Employees' Exhibit 'A-1')."
PLBn3s-Award 28
The Board finds that the Parties herein, Carrier and Claimants 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 Claimants, G. Kudrna and J.Syverson holds seniority in the Maintenance of Way and Structure Department.. On the dates In question they were assigned as welders to the Stanley Welding Crew. During multiple dates between April 23, 2012 and June 2, 2012, the Carrier assigned members of a mobile welding crew to perform over time welding work on the Glasgow Subdivision. The Organization submitted a claim on behalf of the Claimants and alleged the assignment of welding work to members of a mobile welding crew was a violation of the Collective Bargaining Agreement.
The Organization maintains that the Carrier has regularly assigned the Claimants to perfonn welding duties at the locations at issue. The Organization insists that the failure
to assign the Claimants to perfonn the overtime welding work with the Steel Gang RP- 06 was a violation of the Agreement. The Organization specifically points to Rule 1 Scope, Rule 2 Seniority Rights and Sub-Department Limits, Rule 5 A, Seniority Roster, and Rule 24 Forty Hour Work Week, as being violated. In support of its position. the
Organization cites several NRAB Third Division Awards to support their interpretation of the above Rules. As a remedy, the Organization, claims that the Claimant is entitled to be compensated uall hours worked by the Mobile welding orew during the time at issue:
The Carrier first contends that the present dispute is not an inter-craft dispute "between different sub-departments, aafts, or positions as defined in Rule 5 of the Agreement." The Carrier points out that all the employees listed in the claim are welders, the only difference is that the employees who received the assignment were from a mobile unit and the Claimants were assigned to headquarters. The Carrier further insists that that the assignment did not violate the seniority clause• because an employee's seniority rights apply to position-not dally task, under the bulletin and assignment Rules 21 and 22."The Carrier cites several past arbitral precedents to support its position. The Carrier cites Third Division Award 39356 to support their position that the assignment of the moblle unit was not a violation of the Agreement.
With regards to Rule 24, the Carrier contends that the employees assigned to perform the tasks were regular employees, thus this provision of the Agreement was not violated
After careful review of the record, the Board finds that the evidence presented by the Organization is insufficient to support their claim that the assignment of the mobile unit employees to work overtime, instead of the Claimants violated the Agreement. The Board based its finding on prior arbitral decisions and the clear language within the Rules cited by the Parties. The Board agrees with the Carrier's position that the assignment of task to a less senior welder did not violate the Agreement. The Organization has the burden of providing evidence that the Agreement was violated. Here, the evidence does not support a violation of the Rules cited by the Organization.
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The OganizatJon c;:ite$ Rule 24 a& being violated Rule 24 states:
FOFffY HOUR WORK WEEK
J. Work on Unassigned Day&- Where work Is required by the Company 1o·be pemmned, ona.day:whfQb is not• part of imy asstQnment it may be peibmed bt an avaltable extra or
unassigned employe who wil otherwise not have (40) rs
of woJk that week; in auothercasee by ttteregular empt .
The Board acknawtedge& that seniority "ii one of the most important cornerstones upon whfch.colJedfve bargaining •re ."(86&. nitationsubmfssion). Rllle$ 2 aDd $ of the«>llective bargaining agreement outfines the Nie& on.howseniority tobe applied When employee& are coneideNld foF·poaltions. But lbQse Rule$ donot limit the Carrle(s right toma andtaak$ withfn :aeta .especially when
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the ernpt,yee& an11 within the same claaaificatfon. The Welder& WhO are SS$1gned to Headquarters and the Weldent assigned to Mobife Gang .. fn the same cfassiftcatiQtl. Had the Eknployft$ been in different ctassfflcationathe outcorn.e may have t)een different Here, the Agreement doe8 not limit the Carrier in making daily assfgments within 1be cfassiflcatk>n of empiov- The cited by the Organizatk>rt outlines S-,farily rig•·of employees. But·ttw seniorityrules are. not appUcabJe to thefacts before this Board. Likewise Rule 24 QOVefS situattooa whefe and uoasslgned or . _,,p wh9 W11l not woct:.forlv (40t hours in a week may receive an MSignment. Tf1elanguage in Rut,,; 24 doesn't au the Organlzatkm'a
