NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 THIRD DIVISION Award No. 29546
Docket No. MW-29916
93-3-91-3-300
The Third Division consisted of the regular members and in
addition Referee Hugh G. Duffy when award was rendered.
(Brotherhood of Maintenance
(of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed
and refused to permit Mr. G. R. Broughman to displace
junior employe D. E. Phillips from the track foreman's
position on Gang TM-617 at New Lexington, Ohio beginning
September 20, 1989 (System Docket MW-1095).
(2) As a consequence of the aforesaid violation, Mr. G.
R. Broughman shall be allowed ten (10) hours of pay at
the track foreman's straight time rate for each work day
beginning September 21, 1989 and continuing until the
violation is corrected. In addition, Mr. Broughman shall
be allowed compensation at the track foreman's overtime
rate for all overtime hours worked by Mr. D. E. Phillips
as a track foreman during the claim period."
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 employe 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.
Form 1 Award No. 29546
Page 2 Docket No. MW-29916
93-3-91-3-300
The record in this dispute contains a statement by the
Claimant that on September 21, 1989 he travelled to New Lexington,
Ohio, and informed the Supervisor that he wanted to bump Mr. D. E.
Phillips, who was temporarily working a Foreman position. He
states that the Supervisor prevented him from making the
displacement. The record also contains the following hand-written
statement by the Supervisor: "Mr. Broughman never asked me to bump
Mr. Phillips so this time claim should not be paid."
The Board finds that it has been presented with irreconcilable
statements of facts by the parties, and that it has neither the
authority nor the competence to resolve factual disputes such as
this. Under well-established precedents of the Board, the claim
must therefore be dismissed.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
cy J. r - Executive Secretary
Dated at Chicago, Illinois, this 9th day of March 1993.