Form 1
Parties to Dispute:
Dispute: Claim of Employes:
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No.
6861
Docker No.
6658
2-BN-CM-'75
The Second Division consisted of the regular members and in
addition Referee Nicholas H. Zumas when award was rendered.
System Federation No. 7, Railway Employes'
Department, A. F. of L. - C. I. 0.
(Carmen)
( Burlington Northern, Inc.
1. That the Burlington Northern, Incorporated, violated Rules 27,
83
and
86
of the Controlling Agreement in effect on the Burlington
Northern, Incorporated, when they assigned ox permitted a Carrier's
supervisor to operate the Superior wrecker at the Pengilly,
Minnesota derailment on April 27, 1972.
2.
Findings:
That accordingly the Burlington Northern, Incorporated, be ordered
to additionally compensate Carman A. Flagstad in the amoung of
sixteen
(16)
hours at the time and one-half
(12)
rate for
April 27, 1972.
The Second Division of the Adjustment Board, upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in
this dispute are respectively carrier and employe within the meaning
of the Railway Labor Act as approved June 21,
1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing
thereon.
The initial question that must be resolved in this dispute is whether
Claimant was the "employee involved" as required by Rule
34
of the
Agreement between the parties.
In the handling on the property Carrier by letter dated October
3,
1972 rejected the claim contending, among other things, that:
"Claimant Flagstad is not a proper claimant under any
cixcuni5tances, as he was note carried on the overtime
call list on the claim date and would not have been
used for wreclLer service." (Underscoring added).
Form 1 Award No.
6861
`. page 2 Docket No. 6658
2-BN-CM-'75
By letter dated October 30, 1972 the Organization refuted Carrier's
contention as follows:
"Contrary to your statement, Carman Flagstad is the
proper claimant inasmuch as he is a qualified
wrecking engineer and has been used as such at
Superior. PZr. Flagstad is on the proper established
current posted overtime list. He has been called
for wrecking engineer off this list in the past."
(Underscoring added).
The claim date involved in this dispute was April 27,
1972
- approximately six months earlier. Despite the Organization's assertion that
Claimant was on a current overtime list, there is no evidence of any
probative value to show that Claimant was entitled to be called or. tile
claim date. Once the question of the proper Claimant is raised by
Carrier, she Organization has the burden of showing that Claimant was tile
"employee involved". The failure to meet this burden compels a dismissal
of the claim.
A W A R D
Claim dismissed..
NATIONAL RAILROAD ADJUSTMENT BOARD
By
Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment
Board
By
6semarie Brasch - Administrativ:., Assistant
Dated flat Chicago, Illinois, this 16th day of May, 1975.
f
DECEIVED
JUL 1 51975
G. M. YOUHIV
LABOR MEMBERS' DISSENT TO AWARD NO. 6861.
DOCKET NO. 6658
The majprity stated the following as the reason for dismissing
the claim:
"Once the question of the proper Claimant
is raised by Carrier, the organization has
the burden of showing that Claimant was the
'Employe involved.' The failure to meet
this burden compels a dismissal of the claim."
The opinion quoted above is not supported by Awards of this
Division and other Divisions of the National Railroad Adjustment:
Board.
The Referee in panel discussion were furnished copies of Third
Division Awards No. 1646, 3376, 9759 and Second Division Awards No.
1269 and 2214.
Referee Carter in Second Division Award No. 2214 stated in part:
"Carrier says Claimant was not entitled to the
work because he had only point seniority at
Fort: Worth. The answer to this is that the
violation deprived the Carmen of the work. The
fact that there were no Carmen at Chickasha is
not a defense that permits contract violation.
Carrier is required to pay but once and will be
protected against a second demand for the same
violation. It is not a primary concern of the
Carrier as to which of two or more Carmen the
payment is made." (Emphasis ours)
Referee Blake stated in Third Division Award No. 1646:
"700. That the claim might have been urged in
behalf of others having, as between themselves
and North, a prior right to make it, is of no
concern to the Carrier."
Referee Tiptop stated in Third Division Award. No. 3376:
"XXX. But this claim is for a penalty and
this Board has ruled that the petitioner may
may make the claim for compensation in the
name of any employe, as it is only incident
to the violation of the agreement."
While Third Division Award. No. 20190 was not furnished the
Referee in the instant case, however, Referee Joseph A. Sickles
stated:
"This Board has noted on a number of occasions
that the sole fact that another employee may
have had a better right to a claim is of no
concern to the Carrier, and does nbt relieve
the Carrier of a violation of the Agreement
when that right was not exercised. See for
example Awards 19067 (Dugan), 18557 (Ritter),
17801 (Kabaker)."
The majority has resurrected an-J issue that had been resolved
by the several Divisions of the National Railroad Adjustment Board.
Therefore, Award No. 6861 is p y r oneous.
W. O. Hearn,-Labor Member
E. J. McDermott, Labor Member
~ i
E. . Haesaert, Labo Member
G. R. DeHague, T;a-bbr Member
D. S. Anderson, Labor Member
y
DISSENT TO AWARD NO. Ei861,
DOCKET N0. 6658