NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Martin I. Rose, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD
COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
1. Carrier violated the Clerks' Rules Agreement and Memorandum of Agreement No. 9 when on July 21, 1955, and numerous
subsequent dates listed below, it failed and refused to utilize Auto
Mail Clerk Robert D. McCutcheon in accordance with his seniority
to perform overtime on Auto Mail Clerk Positions No. 273 and
No. 650.
2. Carrier shall compensate Auto Mail Clerk Robert D. McCutcheon for eight (8) hours at the rate of time and one-half for
each of the following dates: July 21, 22, 25, 26, 27, 28, 29, August
1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23, 24, 25,
26, 29, 30, 31, September 1, 2, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20
and October 18, 1955 and all subsequent dates junior employees or
outsiders were utilized to fill Auto Mail Clerk Position No. 273.
3. Carrier shall compensate Auto Mail Clerk Robert D.
McCutcheon for eight (8) hours at the rate of time and one-half for
August 20 and 21, 1955 account utilizing an outsider without
properly established seniority to fill Auto Mail Clerk Position No.
650.
EMPLOYES' STATEMENT OF FACTS:
Employe Robert D. McCutcheon was regularly assigned to Auto Mail Clerk Position No. 274 at
Galewood. His assigned hours were 11 P. M. to 7 A. M. Tuesday through
Saturday with rest days of Sunday and Monday; rate of pay, $13.2880 per day.
His seniority date is September 21, 1950.
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791
The Carrier certainly cannot be expected to continue to call an employe
to fill a position the duties of which he has repeatedly demonstrated he cannot
properly and satisfactorily perform and the Carrier respectfully requests
that the claim be denied.
All data contained herein has been presented to the employes.
(Exhibits not reproduced.)
OPINION OF BOARD:
There is a conflict in the record whether Claimant Robert D. McCutcheon had sufficient fitness and ability to perform the
duties and maintain the schedule of Auto Mail Clerk, Position No. 273, on the
dates in dispute. This Board has no way in which it can reconcile such conflicts.
This Division has repeatedly held that the burden of proving that he
has sufficient fitness and ability is upon Claimant, after Carrier's determination
to the contrary. Claimant failed to meet that burden here.
FINDINGS: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
That the Carrier and the Employe involved in this dispute are respectively
carrier and employe within the meaning of the Railway Labor Act, as approved
June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the Agreement was not violated.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 26th day of May, 1961.