Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29111
THIRD DIVISION Docket No. MW-29047
92-3-89-3-475
The Third Division consisted of the regular members and in
addition Referee John C. Fletcher 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 Agreement was violated when the Carrier assigned other
forces to fill a machine operator position (SS-22M) instead of recalling and
assigning furloughed Machine Operator M. W. Neuner beginning on April 20, 1988
and continuing (Carrier's File 880523 MPR).
(2) As a consequence of the violation referred to in Part (1)
hereof, the Claimant shall be allowed pay for eight (8) hours per day and any
overtime and holiday pay beginning April 20, 1988, in addition to any additional expense incurred th
Carrier, continuing until the Claimant is allowed to fill the position in
question or returned to service in accordance with his seniority."
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.
As Third Party in Interest, the International Union of Operating
Engineers was advised of the pendency of this dispute, but chose not to file a
Submission with the Division.
The dispute before the Board in this Award and that involved in Third
Division Award 29112 concern the assignment of operators to certain pieces of
heavy equipment. Some items of heavy equipment are operated by Carrier employees assigned under an A
Engineers. However, according to Carrier, from time to time, when operators
Form 1 Award No. 29111
Page 2 Docket No. MW-29047
92-3-89-3-475
working under the IUOE Agreement are not available, qualified employees working under the Agreement
contends, on the other hand, that it was the location of the job which dictated which employee would
terminals an Operating Engineer would be used. If it was working on maintenance work outside the ter
The Organization has the burden of establishing necessary elements in
support of its Claim. This has not been done on this record. The facts giving rise to the initial Cl
was furloughed, from a machine operators position working under the Agreement
covering members of the Organization, he attempted to displace the operator of
a Speed Swing Machine being operated by an employee working under the IUOE
Agreement. There is no evidence that any complaint was registered (at any
time prior to the attempted displacement) concerning the operation of this
Speed Swing by an Operating Engineer. It was only after Claimant was not
allowed to displace an employee working under the IUOE Agreement that allegations were advanced that
working outside a terminal.
When this is considered with Paragraph (e) of the Scope Rule, reading:
"Does not include operators and helpers on heavy
equipment on Eastern and Western except when assigned
to system bridge gangs,"
Rule support for the Claim is missing.
The Claim is without merit. It will be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 28th day of February 1992.