Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28435
THIRD DIVISION Docket No. MW-28362
90-3-88-3-132
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:
(National Railroad Passenger Corporation - (Amtrak)
Northeast Corridor
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned junior Truck
Driver W. Pettiway instead of Mr. J. Hunt to perform overtime service on June
10, 18, 23, 24, 26, 30, July 1, 2, 3, 7, 8, 14, 15, 21 and 22, 1986 (System
File NEC-BMWE-SD-1690).
(2) As a consequence of the aforesaid violation, Mr. James Hunt
shall be allowed fifty-three (53) hours of pay at the truck driver's time and
one-half overtime 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.
This dispute is based on the allegation that certain overtime work,
transporting train crews from the 30th Street Station to various locations in
the Southern District was performed by a truck driver junior to Claimant. On
the fifteen days specified in the Claim, it is argued by the Organization that
Claimant should have been assigned to the overtime work in accordance with
Rule 55(a).
Form 1 Award No. 28435
Page 2 Docket No. MW-28362
90-3-88-3-132
Carrier maintains that the work complained of simply did not occur.
For that reason Carrier argues initially that there is an irreconcilable conflict in fact in this ma
An examination of the record reveals one document in support of Claimant's version of the allege
truck driver claims that he did indeed perform the disputed overtime on nine
of the fifteen days specified in the Claim. On the other hand, Carrier asserts that its records, whi
that on at least eight of the claimed days the junior driver was engaged in
normal track maintenance activities and not the claimed crew transporting
activity which was at the heart of this matter.
It is quite clear that this Board has neither the authority nor the
competence to resolve factual disputes such as that revealed above. Since the
evidentiary question is the first essential element in this dispute, we cannot
apply the Agreement to indeterminate facts (see Third Division Awards 24418,
21531, 21436, and 21423 among many others). We have no choice but to dismiss
the Claim.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Zo.".
Nancy J. a -Executive Secretary
Dated at Chicago, Illinois, this 21st day of June 1990.