NATIONAL RAILROAD ADJUSTMENT HOARD
THIRD DIVISION Docket Number bbl-22590
(Brotherhood of Maintenance of Wayy Employes
PARTIES TO DISPUTE:
(The Baltimore and Ohio Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The Agreement was violated when Class 'A' Equipment
Operator J. R. Ball, was used to perform traclman's work on November 16,
17, 182 19, 22, 239 24, 25, 26, 29, 30, December 1, 2, 3, 6, 7, 8, 9,
10, 13, 14, 20 21, 22, 23, 24 (holiday), 25 (holiday), 28, January 1
(holiday), 3,
4,
59 69 7, 10, ll, 12, 13 and 14, 1977 instead of
recalling and using furloughed trackman Wm., S. Ma3lette for such
service (System File MON-824/2-MG-1784).
(2) Trackman Wm. S, Mallette shall be allowed eight (8)
hours' pay at his straight-time rate for each of the dates set forth
in Part (1) above."
OPINION OF BOARD: From the record in this case we cannot determine
with certainty the circumstances under which
employe, J. R.
BUM.,
acquired the right to exercise his seniority
either to displace on to Track Gang 1329-1118 or to be placed in a
vacancy on that Track Gang.
What we can determine from the record is that on or about
November 15,
1976,
Claimant ate was cut off Exam Track Gang 13291118 and fUrlanghed, and that, on that same date, e
who is see'ar as Trackman to Claimant - came on as a ~ber of Track
Gang 1,329-1118. From November 15,
1976
to January 1, 1977, Employe
Bail was paid at the Class A Machine Operator rate for the service he
performed with Track Gang 1329-1118. Thereafter, Employe Ball was paid
at the Trackman's rate of par.
Carrier insists that the Machine Operator rate was paid to
Employe Ball in error and that when the timekeeper's error was found,
it was rectified.
Award Number 22644 Page 2
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Dccket Number W-22590
Petitioner ..argues that such a contention is difficult to
believe and that, in fact, Employe Ball was assigned as a Class A
Machine operator but was used to perform Trackman's duties on a daily
basis in violation of Rules 1(d) and 1(f) of the Agreement.
Oar review of the record before us fails to reveal any
substantive proof of the contentions advanced by Petitioner. The fact
situation shows that Mr. Ball had greater seniority as a Trackman than
did the
Claimant.
The fact situation shows that the Track Gang in
question consisted of a Foreman and five (5) Trackmea. The fact that
Mr, B811 was improperly allowed the Machine Operator rate for a period
of time does not, per se, imply that he was assigned as a Machine
Operator. The respective seniority of the two people involved is the
controlling factor. The employe with greater seniority was utilized.
Such utilization does not cause the Junior employe to be aggrieved.
We will dismiss the claim for lack of conclusive evidence.
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 not violated.
A W A R D
Claim dismissed.
NATICIAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST.
awff~
Dated at Chicago, Illinois, this 30th day of November 1979.