' AWARD No. 16
CASE No. MW-219 =
SPECIAL BOARD OF ADJUSTMENT No. 293
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
versus
THE CENTRAL RAILROAD COMPANY OF NEW JERSEY
STATEMENT OF CLAIM:
(1) The Carrier violated the Agreement by increasing the track
force on Section
#4,
Point Pleasant, New Jersey, from 10 -_
Laborers to 20 Laborers on specified dates from June
17
through July
17,
1959, in violation of Exhibit
14
of the
Agreement.
(2) The Carrier violated the Agreement by failing to compensate
Assist-and Foreman Dominick Delcurla, Section
#4,
Point
Pleasant, New Jersey, at the Foreman's rate of pay for the
services rendered on the dates referred to above.
(3)
Assistant Foreman Delcurla be now compensated for the difference between what was paid him at the Assistant Foreman's
rate and what he should have received at the Foreman's rate
of pay during the period referred to.
OPINION OF BOARD:
A Section Foreman and an Assistant Foreman are regularly assigned to
Section
#4,
Point Pleasant, N. J., on the New York and Long Branch Railroad. On
11 specified days beginning on June
17
and ending on July
17,
1959 the Carrier
increased the Track Laborer force assigned to this section to between
17
and 19
men, the exact number varying from day to day within this range. On each of the
11 days in question this force was split into two groups. One group worked under
the immediate supervision of Foreman Santelli and the other under the immediate
supervision of Assistant Foreman Delcurla -- the claimant in this case.
With respect to Part (1) of the claim, the Organization contends that
Exhibit
14
of the controlling Agreement fixes the number of Laborers (including
a Laborer-Driver) in the gang normally assigned to Section
#4
at the level of
10 men, together with one Foreman and one Assistant Foreman, and that the Carrier
is barred from unilaterally increasing the size of this gang. The Organization
asserts it has been the past practice to establish an extra gang on the section
when the need for additional manpower arises, instead of increasing the size of
the normal gang and splitting it between the regular Foreman and the regular
Assistant Foreman. .
We find that Exhibit
14
fixes at 18 the minimum force of Laborers assigned to the four NY & LBRR sections combined and provides that the number of
Laborers may be reduced below this figure by negotiation. There is no contract
limitation on the maximum number of Laborers that may be assigned to any particular NY & LBRR section or to all of these sections combined. Moreover, no provision appears in the contract which requires the Carrier to establish an extra
gang whenever the track force assigned to one of these sections is increased
Page 2 AWARD No. 15
NU - 219
above 10 Laborers. The fact that the Carrier has established extra gangs on
Section
#4
in the past does not mean that it has become obligated to establish
an extra gang whenever, as in the instant case, day-to-day increases in the
track force requirements occur.
The Organization nevertheless urges that Assistant Foreman Delcurla
was required to perform the work of a Foreman on the dates covered by the claim
and therefore was entitled to be paid the Foreman's rate. In urging that
Delcurla was used as a Foreman, the Organization stresses the fact that on the
11 days in question the Assistant Foreman supervised a different group of
Laborers than did the Foreman, that on some days the Foreman and Assistant Foreman and their respective groups were working a considerable distance apart, and
that on two days (June
17
and
18)
the Foreman and his group were working in an
adjoining section. All of Assistant Foreman Delcurla's service was performed
within Section
fi
4
territory.
The evidence shows that on or immediately before each of the involved
days, except June
17,
the Foreman gave instructions to Assistant Foreman
Delcurla on the work the latter was to perform with the men assigned to him.
We find that Claimant Delcurla was used only as an Assistant Foreman on these
days. There is no contract requirement that the Foreman work at the same location as the Assistant Foreman, nor is there any prohibition against dividing a
section gang between a Foreman and an Assistant Foreman, so long as the Foreman
exercises overall supervisory responsibility. The fact that the Foreman worked
on an adjoining section on June
18
after having given instructions to the Assistant Foreman does not mean that the Assistant Foreman was performing the
duties of a Foreman on that day.
The unrefuted testimony of Assistant Foreman Delcurla is that he was
not given any instructions by his Foreman concerning the work the claimant was
to have his group of Track Laborers perform on June
17,
however. It does not
appear that the Foreman exercised supervisor responsibility over the Assistant
Foreman on this date. We conclude that Claimant Delcurla was used as a Foreman
on June
17,
1959 and that he was entitled to be compensated at the Foreman's
rate, instead of the Assistant Foreman's rate, on said day. The Claimant's
request for the Foreman's rate for the other days must be denied.
A W A R D
Part (1) of the claim denied. Parts (2) and
(3)
of the claim
denied in part and sustained in part as indicated in the
Opinion of the Board.
(s) L
7
Loyd H. Bailer
Ld
T
lo i. Bailer, Neutral Member
(s) A. J. Cunningham (s) C. S. Strang
A. J. Cunningham, Employe Member C. S. Strang, Carrier Member
Jersey City, N. J.
January 25, 1962