Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29055
THIRD DIVISION
Docket No. MW-28477
91-3-88-3-277
The Third Division consisted of the regular members and in
addition Referee Gil Vernon when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company
(Former Missouri Pacific Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it recalled junior
Trackmen C. P. Bach and G. DeCourley instead of Trackman P. Pickens to work on
the System Rail Gang beginning February 17, 1987 (Carrier's File 870348).
(2) As a consequence of the aforesaid violation, Mr. Pickens' seniority on the System Rail Gang shall be restored and he shall be allowed pay:
'... for eight (8) hours each work day,
including any holidays falling therein, beginning February 17, 1987, and continuing so long
as junior trackmen work to exclusion of :fir.
Pickens.'"
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.
A proper resolution of this case requires first a careful analysis of
the evidence and argument handled on the property and second, a comparison of
that record to the evidence and arguments advanced by the Carrier in its Submission to the Board. Such a comparison reveals that the Carrier's case and
defense before the Board is dramatically different than that it presented to
the Organization on the property.
Form 1 Award No. 29055
Page 2 Docket No. MW-28477
91-3-88-3-277
In summary, it is the opinion of the Board that the Organization
established a prima facia case on the property on two points (one procedural
and one substantive), either of which would be a basis to sustain the claim.
Further, it is our opinion that the prima facia case was not successfully
rebutted on the property. It is so well established so as not to require
citation that to be properly considered, evidence and arguments must have been
presented on the property.
The procedural case made by the Organization relates to the Assistant
Vice President-Engineering's failure to respond to the claim within 60 days.
White the response was dated within 60
days on its
face, the Organization presented a copy of an envelope 4ith a postmark outside the 60-day limit and a
copy of the Carrier's response date stamped as received a few days after the
postmark. The Organization asserts that the envelope it presented was the
envelope in which the response was sent and argued consequently that the time
limits were violated. The Carrier, based on the record we have before us,
never responded to the Organization's evidence or arguments.
Additionally, it is noted that the Carrier never successfully rebutted the Organization's assertion that the Claimant had filed his name and
address after August 1986, and that the Carrier was in possession of the Claimant's correct address. Moreover, the Carrier failed to support its defense on
the property that they had sent a proper recall in November 1986, to which the
Claimant failed to respond.
In view of the foregoing, the claim must be sustained.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: . _
Nancy J. Executive Secretary
Dated at Chicago, Illinois, this 22nd day of November 1991.