NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-21181
Joseph A. Sickles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Board of Trustees of the Galveston Wharves
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned junior
Truck Driver A. Butler for overtime service on March 16, 1974 instead of
assigning Truck Driver W. B. Brown who was senior, available and willing to
perform that service (System File 700-48).
(2) Truck Driver W. B. Brown be allowed nine (9) hours of pay
at his time and one-half rate because of the aforesaid violation.
OPINION OF BOARD: Claimant is regularly assigned as truck and tractor driver,
Monday through Friday.
Although Claimant was the senior available truck driver on Saturday,
March 16, 1974, Carrier called a junior employe to perform nine (9) hours of
overtime service.
The Organization cites Article 4, Rule 1:
"Right accruing to employes under their seniority entitles
them to consideration for positions in accordance with their
relative length of service with the Company as hereinafter
provided."
and cites Awards which hold that said language contractually entitled Claimant to the overtime in qu
On the property, Carrier defended its failure to call Claimant on
the day in question because, it asserts, he had reported to the Truck Dispatcher
that he did not desire to work any overtime "...at all that week" or "over
the weekend."
Claimant denies that he had so advised the Carrier. He states that
he was asked to work on Friday, March 15, 1974, but was able to find alternate
coverage. However, he claims that he made no comments regarding March 16, 1974.
It would appear that Claimant had made some statement to Carrier
regarding a desire not to work overtime during the week because the record
shows that two junior employes had worked considerable amounts of overtime
during that time, without objection by Claimant. But, that factor is not
Award Number 21090 Page 2
Docket Number MW-21181
dispositive. Moreover, the fact that Carrier may have contacted Grievant
to advise him that it had secured coverage (a senior employe) for March 16,
1974 fails to dispose of the issue.
It appears that this dispute is resolved based upon an evaluation
of the evidence of record and a determination of which version we credit.
We have noted that in the handling on the property, Carrier presented no statements from the Truck D
occurred. The record does contain a direct statement from the Claimant.
The Carrier's position here would appear to be in the nature of an affirmative defense, and accordin
in Claimant's favor.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employes involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor
Act, as approved June 21, 1934;
That this Division of the Adjustment Beard has jurisdiction over
the dispute involved herein; and
That the Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
ao
&0,
Executive Secretary
Dated at Chicago, Illinois, this 28th day of May 1976.