Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28394
THIRD DIVISION Docket No. MW-27719
90-3-87-3-186
The Third Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
(Former St. Louis-San Francisco Railway Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned Messrs.
J. C. McMorris and H. Freeman to fill temporary vacancies as machine operators
(Fairmont Spike Driver) on November 5, 6, 7, 8, 11, 12, 13, 14 and 15, 1985
instead of assigning Machine Operators D. A. Williams and R. A. Powell (System
Files B-1987-1/EMWC 86-2-12B and B-2117/EMWC 86-2-12A).
(2) Because of the aforesaid violation, furloughed Machine Operators
D. A. Williams and R. A. Powell shall each be allowed seventy-two (72) hours
of pay at the machine oeprator's (Fairmont Spike Driver) rate."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimants, both Machine Operators, had been regularly operating Spike
Driver machines on Gang T-1. On October 16, 1985, Claimants were furloughed
since their machines were no longer required. Some three weeks later the
gang, reduced in size, was moved to a new location. Spike Driver machines
were needed and indeed were used for several hours a day for the period
November 5 through November 15, 1985. Two Machine Operators assigned to the
gang operated the Spike Driver machines during a nine day period, on a
temporary basis, in addition to filling their regular positions.
Form 1 Award No. 28394
Page 2 Docket No. MW-27719
90-3-87-3-186
It must be noted that the handling of this dispute on the property
differed markedly, by both the Organization and Carrier, from the handling
before this Board. However, it appears that the primary thrust of the Organization's position is tha
That Rule provides:
"Rule 38. Assignment of Employe
(a) Assignments to new positions, or to fill
regular vacancies on existing positions, will be
made in accordance with the following:
(6) Except as otherwise provided, employes
will not be permitted to work unbulletined
temporary positions or vacancies in class where
they hold sufficient seniority to entitle them
to a regular position."
It is the Organization's position that Carrier erred in assigning the two
Machine Operators who had sufficient seniority to hold regular positions to
the unbulletined temporary vacancies of operating the Spike Drivers.
Carrier asserts that it had the right to make the temporary assignments in question. It believes
Organization's position and that it had the right to assign the Machine
Operators to the two vacant temporary jobs.
We are not persuaded that Carrier's actions in this dispute constituted the filling of an unbull
has not met its burden of proof on that matter. This dispute is closely
analogous to our thinking in Third Division Award 27698 involving the same
parties. In addition, we believe that the particular circumstances in this
matter are covered by the parties reasoning expressed in the Composite Service
Rule (Rule 70(a)). For the foregoing reasons, the Claim does not have Rule
support and in our judgment must be denied.
A W A R D
Claim denied.
Form 1 Award No. 28394
Page 3 Docket No. MW-27719
90-3-87-3-186
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J a~_r - Executive Secretary
Dated at Chicago, /Illinois, this 25th day of May 1990.