NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-23976
Wesley A. Wildman, Referee
(Brotherhood of Maintenance of Way Employes
(Consolidated Rail Corporation (former Lehigh Valley
( Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned Truck DriverTrackman Stephen Gober instead o
service as a welder helper on May 22, 1979 at Allentown Yard (System Docket No.
LV-174).
(2) Because of the aforesaid violation, Welder Helper Wilbur Wagner
be allowed eight (8) hours of pay at his time and one-half rate and one-half
(1/2) hour of pay at his double time rate."
OPINION OF BOARD: Claimant is a Welder Helper who asserts that Carrier erred
in making a single shift overtime assignment of allegedly
Helper work to a Truck Driver-Trackman rather than to Claimant.
While the underlying facts are in some dispute, we find credible on the
limited record before us, the following:
1. The assigned Truck Driver-Trackman did function as a Welder Helper
on the overtime shift in question. The Organization so claimed repeatedly, in the
written documents which constitute the "on the property" record in this case.
While this essential fact is challenged in Carrier's ex parte submission to the
Board, there is no evidence on the record that Carrier contested the Organization's
claim in this regard during proceedings in this case "on the property". Had such
been done the issue might, of course, have been subjected to debate on the record
or submission of record evidence.
2. While Claimant did decline assignment as a Welder on the overtime
shift in question (asserting lack of competence and qualifications), Claimant was
available for assignment and willing to work as a Welder Helper on the shift.
While there is dispute over this issue on the record, our assessment of the weight
and significance of the admittedly meager conflicting available evidence compels
this findings.
3. Contrary to the assertion of the Carrier, it seems evident from the
redbl'drth#t the Organization did claim, during processing of this case on the propertv
that Car+~br's assignment of overtime to the Truck Driver-Trackman rather than
Claimant
vto
ated seniority provisions of the Agreement between the parties.
We find thaikhe very nature of the initial grievance claim in this case, as well
as the Organs ton's subsequent written reference on the property to at least some
,,`y,pf the seniority provisions of the Agreement, places relevant seniority rules
a]6loLOpri4telyr'in issue here.
Award Number 25104 Page 2
Docket Number MW-23976
In is undisputed that Claimant does hold seniority rights within the
seniority group designated as Welder Helper. It also seems clear, and is largely
uncontroverted, that by virtue of practice, precedent, and the thrust of the
language itself, seniority provisions such as Rule No. 2(b) in the Agreement
between the parties to this case requires (absent unusual circumstances) the application of the seni
work normally done by members of that group.
rJ
In accord with the above, the claim in this case is sustained as
presented.
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 ever - Executive Secretary
Dated at Chicago, Illinois, this 23rd day
of
October, 1984.
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