NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25019
Edward L. Suntrup, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Denver and Rio Grande Western Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned and used a
Car Department employe to perform Maintenance of Way and Structures Department work
at Grand Junction, Colorado on May 12, 13 and 19, 1981 (System File D-2381 /MW-22-81).
(2) Because of the aforesaid violation, Machine Operator D. Drake shall be
allowed twelve (12) hours of pay at this straight time rate.
OPINION OF BOARD: This is a claim filed by the organization on June 29, 1981 on
behalf of the Claimant, D. Drake. It is alleged in the claim that
the Carrier:
"...assigned or otherwise permitted an
employee of
the Car Department
craft who holds no seniority rights under the Brotherhood of Maintenance
of Way Agreement to operate a Caterpillar 920 front-end loader in the
performance of grading roads, loading track material such as ballast,
excavating and general Maintenance of Way work on Grand Avenue and railroad
crossing which was being repaired by the Grand Junction Section and B & B
Forces."
The work was performed for four (4) hours each day on May 12, 13 and 19, 1981.
In its denial of the claim on property the Carrier states that a "front-end
loader has been assigned to the Car Department for a number of years" prior to
this incident and that the machine is used for "various assignments which are not
the exclusive work under the Maintenance of Way Agreement". The Board observes
that the above could be true without invalidating the claim since a Carrier may
assign its equipment in whatever efficient manner it judges best. The instant claim
does not deal, however, with the use of the piece of equipment per se but with its
use to do a particular kind of work covered by the Rules at bar and by past practice.
The record further substantiates that the Claimant was qualfied to operate the piece
of equipment to do the work in question.
The main thrust of the Carriers argument in denying the claim is that
the Claimant was not available to do the work because he had been assigned to do
other work by the Carrier. Here, however, as it has done in past Awards, the
Board rejects denial of a claim such as this on "availability" grounds. If the
Claimant was not available where and when the disputed work took place it was because
he was not assigned there by the Carrier (See Third Division 13832 and 15497
inter alia).
Award Number 24897
Docket Number MW-25019 Page 2
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
Nancy JGzever - Executive Secretary
Dated ac Chicago, Illinois, this 18th day of July 1984.