NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-22269
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Inc. °
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The Carrier violated the Agreement when it assigned
Sectionman V. Noyola instead of Truck Driver J. A. White to fill a
vacation vacancy of section foreman from June 4, 1976 through
June 18, 1976 fS-ystem File P-P-301C/MW-6(d)-l 10/5/767.
(2) Truck Driver J. A. White shall be allowed the difference between the section foreman's rate and
for all time worked by Sectionman V. Noyola as a section foreman
during the period referred to in Part (1) hereof."
OPINION OF BOARD: Rule 19B provides:
"Vacation relief may be provided by assigning
qualified employes in seniority order in the
following order of preference before other employes
will be assigned to perform vacation relief on an
involuntary basis:
(1) Employes holding seniority but unassigned
in the classification or seniority rank of the
vacationing employe who are working at the location
or on the gang where relief is to be provided.
(2) Employes holding seniority in lower
classification and seniority ranks in the seniority
sub-department of the vacationing employe who are
working at the location or on the gang where relief
is to be provided.
(3) Employes who have filed written requests
under Section A of this rule who are not working at
the location or on the gang where relief is to be
provided, and who will be subject to Rules 35 and 36."
Award Number 22305 Page 2
Docket Number MW-22269
The Claimant holds seniority as a truck driver within the
Track Sub-Department. His assigned headquarters is Connell,
Washington. Section Foreman L. F. Hausman, also headquartered at
Connell, Washington, was on vacation June 5 through June 18, 1976.
The Claimant asserts that he should have been utilized to
relieve the Foreman during the vacation and that the Carrier erred
when it used Sectionman Noyola, who was headquartered at Wheeler,
Washington.
The Organization asserts that the claim is proper under
Rule 19B(2).
The Carrier first argued that the Claimant did not file
a written request pursuant to Rule 19B(3). If the Claimant was a
qualified employe and the provisions of Rule 19B(2)
app3Qy,
then the
written request called for in Rule 19B(3).would, in pact, be #.napplieatile
to this case. Apparently, the Carrier recognized this contention
and then asserted that the Claimant was not qualified and, therefore,
none of the three numbered paragraphs of Rule 19B apply.
The argument advanced by the Carrier to support the lack
of qualification of the Claimant is based strictly upon his attitude.
The Carrier maintains that the Claimant has a bad attitude in regard
to following directions and, therefore, he is not qualified to perform
the job of Section Foreman. The record is inadequate to support this
contention.
What is proven is the fact that the Claimant and the Carrier
had a disagreement in regard to alleged injuries two years prior to _
the time of this claim. It appears that the Carrier advanced the
argument that the Claimant was not qualified predicated primarily on
the prior incident involving safety and injury and not on his current
ability, or lack thereof, to perform the duties of Foreman.
Rule 19B first provides that employes holding seniority in
the class of the vacancy to be filled will be given first opportunity.
In this case, no employe was available. The second preference is
granted to employes holding seniority in a lower class who are working
at the location where the vacation vacancy arises. The Claimant
qualifies under this section. Rule 19B(2) does not require a written
request by the employe in order for him to be available for vacation
relief on or at the point employed.
Award Number 22305 Page 3
Docket Number MW-22269
The Organization further asserts that weight should be
given to the offer of the Carrier to compensate the Claimant in the
amount of one-half of the amount sought to be recovered herein.
We do not view an offer of settlement as an admission against
interest. To do so would stifle and inhibit legitimate negotiations
to settle pending cases.
The record supports the contentions of the Claimant and
the claim is sustained.
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 Board 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:
Executive Secretary
Dated at Chicago, Illinois, this 22nd day of February
1979.