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BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYEES DMSION - IBT RAIL ) CONFERENCE )
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BNSF RAILWAY COMPANY )
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PLB 7738-9
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, Dennis Anderson holds seniority in the Track-Sub-department and is regularly assigned such duties. R. S. Marshall has seniority as a Group 3 Machine Operator in the Welding SulHfepartment. Beginning on July 22, 2010 through August 6, 2010 Mr. Marshal was assigned to perform as a Sectionman ontheBigHom Subdivision of the Power River Division, instead of the Claimant. The Organization submitted a claim on behalf of the Claimant and alleged the assignment of track maintenance work to Mr. Marshall was a violation of the Collective Bargaining Agreement.
The Organization maintains that the Carrier hasregularty assigned the repair and removal of defective tracks to Track Sub-department employees. The Organization insists that the failure to assign a Sectionman in the Track Sub-department to perform these duties was a violation of the Agreement. The Organization specifically points to Rule 1 Scope, Rule 2 Seniority Rights and Sob-Department Limits, Rule 5A Seniority Roster, and Rule 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 the above Rules. As a remedy, the Organization, claims that the Claimant is entitled to be compensated for eighty (80) hours of straight time pay and sixteen (16) hours at the overtime rate of pay.
The Carrier contends that the issue is an intra-craft dispute, thus the Organization must estabUsh that "the disputed work has been exclusiVely performed by the Claimant on a system-wide basis.• The Carrier states that the Organization failed to meet its burden to establish exclusivity 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 Machine Operator in the Welding Sub-department The carrier insists that there Is no Rule within the Agreement which reserves any work to employees and the Rules cited by the Organization do not support thetr reservation arguments. The Carrier cites several past albitral precedents to support its position.
After careful review of the record, the Board finds that the evidence presented by the Parnes establish that the Carrier violated the Agreement by assigning R. S. Marshall to perform Tra<:k Sub-department track work, instead of the Claimant on the dates in question. Bolh Parties submitted a wealth of documents and detailed analysis on several Rules in the Agreement. The evidence within the record supports the conclusion that the
assignment of the Welding Sub-department employees toperform Track Sub-department work violated Rule 55. The Organization also cites Rules 1, 2, and 5 to support their position. But H is Rule 55 which is dispositlve of the issues before this Board. Rule 55 states. In part:
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PLB 7738-9
RULE 55 CLASSIFICATION OF WORK
K. Welder-An employee anigned to the operation of any welding device used in the performance of such work as repairing, tempering and cutting rails, frogs and switches, welding and cutting in connection with construction, maintenance and dismantling of bridges, building and other structures, and any other welding and cutting in the Maintenance of Way Structure Department shall be
clanifled as a maintenance of way welder.
Q. Sectionmen- Employees assigned to constructk'lg, repairing and maintaining roadway and1rack and other work incident thereto••.
The application of Rule 55 clearly defines the various classifications of work. Specifically. Rule 55 K defines the work of Welders and Rule 55 Q defines the work of Sectiorvnen. 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 a Machine Operator and Sectionman are distinct and different. The work to be perfonned was for a Sectionman. Moreover, the work pedormed waa WOik normally performed by Sedionmen. not Group 3 Machine Operators.
Without doubt. the Carrier has the right to make job assignments. However, there are Umlts. Those linltations have been negotiated by the parties and incorporated Into a collective 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 rosters, and seniority rights. These provisions support the Organization's position that there are clear lines of demarcation between the work performed by the various crafts. The contract doespermit some marginal overlapping of job functions that are incidental to the work that each craft is permitted to perform. But here, on the dates in question. the
Machine Operator was performing the entire functions of a Sectionman. In other words,
the Machine Operator was performing tasks which are customarily performed by
Sectionmen.
The Board findings are in line with other NRAB Third Division Awards.(See,Organization's Exhibit "E") For example, the appllcatfon of these Rules were anatyzed in NRAB Third Division Award 35961 where the fact pattern Is almost identical to the instant case. In that Award, the Board determined that the Carrier's assignment of Welders to perform track work violated 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 N ••• the Carrier simply used the Welders to perform
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PL8 773&-S
large scale track work of a magnitude to which the Claimant 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 Carrier slmply assigned the Machine Operator to perform track work which customarily is assigned to employees In the Track Sub--department which was 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 Group 3 Machine Operator employee toperform Track Sub-departmentwork beginning on July 22, 2010 through August 8, 2010. The Board's findings are based on the clear and plain language of Rules1. 2, 5 and 65.
The Carner has argued that the Organization has failed to estabtish exclusivity under Rule 78. Rule 78 states:
RULE 78. INTRA-CRAFT WORK JURISDICTION
Employees wiH be allowed to perfonn incidental tasks which are directty related to the service being perfonned and which they are capable of performing, provided the task are within the jurisdiction of the BMVVE Compensation shallbeat the applicable rate for the employee performing the seNice and shall not constitute a basis for any time claims by other employees. This provision is nat intended to alter the establishment and manning of work forces accomplished in accordance with existing assignment, seniority, and scope and classification rules.
It is clear from Rule 78 that within the various crafts they may complete a ta6k of each other so long asit is "incidentar. Thekey tennin Rule 78 is "incidental". The plain meaning of the term relates to a function that Is minor, not major but is de minimis in nature. Here, the record reflects that the Machine Operator performed the entire functions of a Sectlonman. Cleany, the work performed by Machine Operators was not incidental to the work normaHy performed by Sectionmen. There is no doubt that the Rule 78 permitS the Carrier to make assignments among the crafts, however, there are Umitations.
The Board agrees with the Carrier that had this purely been a claim of exclusivity, the Organization wouJd have had a heavy burden to carry as outlined in several of National Railway Adjustment Board Third Division Awards, as set forth inthe Carrier's Submission. However, the Board has determined that this case can also be resolved based on the restrictive language within Rufe 78 which places limitation on assignments within craft positions. and Rule 55.
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PtB 7738-9
As stated in National Railway Adjustment Board Third Division Award. 40106:
Contrary to the position set forth by Carner, because the disputed work is covered by 55, and la not "incidental'" to the work of theMachine Operators. the Organization need not show the exclusive past performance by itsmembers. (Organization's Submission Exhibit "Fj
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 facts here, lends itself to supporting a rational conclusion in this Award. Thefacts in this claim clearly show the Group 3 Machine Operator was performing tasks nonnaly assigned to Sectionmen. If employees are permitted to perfonn job assignments which are not intheir classification, and those tasks are not Incidental totheir 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 clearly supports the conetusion that the Carrier is prohibited from unilaterally assigning work from one class of employees as designated under Rule 55, to another class of employees, unless there Is a permissible exception to the above Rule.
The Carrier also argues that the Organization faffed to prove that Rules 1,.2, s. and 55 reserved thework inquestion tothe Claimant. The Carrier cited several on-property awards which determined that these Rules do not reserve work for employees. The Board agrees thatthese Rules do not specifically state that certain work is reserved tocertainemployees. However, a combination of these Rules can reasonably support the Organization's interpretation that the work performed by the Machine Operator violated the agreement.
The clear and plain language within the text of each Rule and the combined application of each Rule supports the Organization's interpretation that the work was reserved for Sectionmen not Machine Operators. Moreover, the basic contract interpretation principle which applieshere states that acontract should notbeinterpreted Inamanner which would result in a '"harsh or nonsensicar outcome. The Carrier's interpretation of these Rules would result inmanagement having the authority to assign craft employees to perform any tasks outside their classification and not violate Rule 55 and the seniority provisions of the Agreement. surely, this could not have been the intentions of the Parties.
Wilh respect to damages, as requested in Part (2) of the claim, the Board recognizes there are different views with respect to awarding monetary damages to a claimant, if they worked during the time in question. The Organization does not dispute that the Claimant worked on the dates in question. This Board takes the view that the Claimant "lost his rightful opportunity to perform the work and is entitled to a monetary claim.• The Carrier should not escape their responsibHity to make the Clainant whole. Thia includes
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PL& ma,.g
compensating the Claimant fQr the right tc worlt m hisclasst u required by the Agreement Based on these prlnciplest this Board follows the view cited in several NRAB Awards which have reac;hed similar conclusions. See,NRAB ThirdAWilrd a5477.
AWA
U1c:
U1c:
Part (1) and (2) of ffl8 Claim of th$ Organization is Granted.
July 1. 2017. .
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