Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29235
THIRD DIVISION Docket No. MW-28754
92-3-89-3-136
The Third Division consisted of the regular members and in addition
Referee William E. Fredenberger, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier permitted Mr. Bruce
Larson to displace Mr. R. Karger from a laborer's position on Floating Maintenance Crew No. X72 on D
(2) As a consequence of the aforesaid violation, Mr. R. Karger shall
be allowed pay at the section laborer's rate for forty (40) straight time
hours and three and one-half (3 1/2) overtime hours. In addition, he shall be
allowed appropriate credits for vacation and fringe benefit qualifying purposes."
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.
At the time of the events giving rise to the claim in this case
Claimant was working as a track laborer on floating maintenance crew X-72. On
December 7, 8, 9 and 10, 1987, the Carrier permitted another employee to displace Claimant fr
Agreement. The claim in this case followed.
Form 1 Award No. 29235
Page 2 Docket No. MW-28754
92-3-89-3-136
The Carrier defends its action in this case on the ground that the
Roadmaster who allowed the displacement at first believed the displacement was
improper under the Agreement but allowed it after the Organization's General
Chairman called him to say that the Roadmaster had to let that employee bump
Claimant. The General Chairman acknowledges that he and the Roadmaster talked
by telephone, but denies that they discussed the request to displace Claimant
or that he agreed to the displacement.
This case raises a question of credibility between the Roadmaster and
the General Chairman. However, after a detailed review of the record in this
case we must conclude that it is insufficient to resolve that issue. Essentially, it is the Roadmast
Neither of the statements by those individuals is corroborated by record evidence. There are no stat
from another Carrier official with whom the Roadmaster alleges to have had
conversation concerning this matter. The Carrier would have us infer credibility on the part of the
with the General Chairman the Roadmaster viewed the displacement as improper
but thereafter allowed it. We do not believe that fact alone is sufficient to
overcome the General Chairman's vigorous denial of the events as portrayed by
the Roadmaster.
Accordingly, we are left with an admitted violation of the Agreement
and little else. In this case it is the Carrier's burden to establish a valid
reason for violating the Agreement. The record in this case is insufficient
to establish such a defense. Accordingly, the claim must be deemed valid.
Although the Carrier has requested application of the principle of mitigation
of damages, we have been shown no authority for that proposition.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
w
Nancy J. a -'Executive Secretary
Dated at Chicago, Illinois, this 18th day of May 1992.