Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31673
Docket No. MW-31236
96-3-93-3-227
The Third Division consisted of the regular members and in addition Referee
Robert Richter 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 assigned junior
employe M.S. Lego, instead of calling and assigning senior employe
R.K. Rupert, to perform overtime service on August 16, 1991
(System Docket MW-2405).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant R.IZ Rupert shall be allowed ten (10) hours' pay at the
vehicle operator's time and one-half rate and (1) day's credit toward
vacation and all other benefits."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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. 31673
Page 2 Docket No. MW-31236
96-3-93-3-227
Claimant was regularly assigned as a Fuel Truck Operator. On August 16, 1991,
the Carrier needed to move a diesel generator and used a junior vehicle operator, who
was assigned a log truck, to move the generator. The claim date was a rest day for both
employees.
The Organization filed this claim alleging a violation
of
Rule 17, which states:
"RULE 17 - PREFERENCE FOR OVERTIME WORK
Employees will, if qualified and available, be given preference for
overtime work, including calls, on work ordinarily and customarily
performed by them during the course
of
their work week or day in the
order of their seniority."
The Carrier argues that the Claimant could not have hauled the diesel generator
because the fuel truck is not licensed or equipped to haul a trailer. It further argues that
the vehicle operated by the junior employees customarily pulled trailers and was
equipped and licensed to do so.
The Organization has the burden to prove the Agreement was violated. It has not
refuted the Carrier's arguments. Its basic position is that the Carrier should have
provided a different vehicle for the claimant. However, the record is void
of
any
evidence
of
the history or practice on the property where trucks were switched so a
senior employee could work overtime. A mere citing
of
a rule does not meet its burden.
The Agreement was not violated.
AWARD
Claim denied.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 29th day of August 1996.