SPECIAL BOARD OF ADJUSTMENT 1110

Award No. 71 Case No. 71 PARTIES TO DISPUTE:

Brotherhood of Maintenance of Way Employees

and

CSX Transportation, Inc. (former Louisville and Nashville Railroad Company)

STATEMENT OF CLAIM:

Claim of the System Committee of the Brotherhood that:

1. The Carrier violated the Agreement when it assigned

Welder C. S. Levan and Welder Helper J. W. Broyles to

perform track work (changing stripped joints by pulling

spikes, using wrenches to remove bolts and respike the

joints) at Mile Posts C-302.6, C-302.8, C-308.2 and C-275 on

the Corbin Division on December 11 and 12, 1995 [System File

7(26)(95)/12(96-265) LNR].

2. As a consequence of the aforestated violation,

furloughed Track Repairmen B. W. Heatherly and D. L. Hammac

shall each be allowed sixteen (16) hours of pay at the track

repairman's straight time rate.

FINDINGS:

This Board, upon the whole record and all of the evidence, finds and holds as follows:

1. That the Carrier and the Employee involved in this dispute are, respectively, Carrier and Employee within the meaning of the Railway Labor Act, as amended,; and

2. That the Board has jurisdiction over this dispute.

OPINION OF THE BOARD:

This dispute involves an allegation of the performance of scope covered work by a Welder and a Welder Helper, who did not possess active seniority under the Agreement in the Track Subdepartment. The Welder and the Welder Helper did possess active seniority under the Agreement in the Welding Subdepartment.

Rule 3 and Rule 5 differentiate between the Track Subdepartment and the Welding Subdepartment. Employees covered by the Agreement accrue seniority in such different subdepartments.

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SBA 1110- hued '1 I

The critical inquiry therefore requires a determination of whether the Welder and Welder Helper performed track work incidental to their primary work of welding or whether they performed a substantial and significant quantity of track work that warranted the recall from furlough of the Claimants from the Track Subdepartment to perform such work.

The record specifies that the disputed work occurred on December 11 and December 12, 1995. The record includes an undated letter from Welder Levan that indicates:

J.W. Broyles and I helped section change out rails on stripped joints at locations lists. Used claw bars wrenchs [sic] spike maul etc. worked 16 st time 2 hr 30 min on 12/11/95 16 st time 4 hr 30 min on 12/12/95

This specific letter from an actual participant omits any reference whatsoever to the performance of welding work. This statement is more persuasive than the Roadmaster's representation that the assigned employees did welding work. In addition, the Carrier failed to provide any written reports to rebut the statement from the Welder.

As a result, the controlling evidence fails to provide a basis to conclude that the Welder and the Welder Helper had performed track work incidental to their primary work of welding. The persuasive evidence therefore proves that the Welder and Welder Helper performed a substantial and significant quantity of track work. Under these circumstances the Carrier had an obligation to recall from furlough the Claimants from the Track Subdepartment to perform such work. This analysis is consistent with the prior rulings of this Board in Awards 30 and 43 (October 25, 1999) (Hockenberry, Arb.).

AWARD:

The claim is sustained in accordance with the opinion of the Board. The Carrier shall make the Award effective on or before 30 days following the date of this Award.

obert L. Dowff as

Chairman and Neutral Member

nald . Bartholo Mark D. Selbert
Employee ember Carrier Member

Dated: ~~.. z , deg J

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