Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33149
Docket No. MW-31774
99-3-94-3-53
The Third Division consisted of the regular members and in addition Referee
Dana E. Eischen 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 Supervisor
A. Mazzarella to perform Maintenance of Way work on July 11 and
12 and August 9, 15, 16 and 23, 1992 (System Docket MW-2782).
(2) As a consequence of the violation referred to in Part (1) above,
Foreman G. Davis shall be allowed seventy four (74) hours' pay at
the foreman's time and one-half rate."
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 were given due notice of hearing thereon.
Form 1
Page 2
low
Award No. 33149
Docket No. MW-31774
99-3-94-3-53
As Third Party in Interest, the United Railway Supervisors Association was
advised of the pendency of this dispute, but it chose not to file a Submission with the
Board.
The facts giving rise to this dispute for the most part are contested. In the Spring
of 1992, Conrail advertised an Agreement-covered Foreman position to work with a
contractor dismantling rail in the Pittston, Pennsylvania, area. Mr. P. Hayduk was
awarded this Foreman position on May 6,1992 and was the incumbent as of July-August
1992 when it became necessary for Carrier to work the position on several Saturdays
and Sundays, the rest days of the Foreman position. The record establishes that
Foreman Hayduk, as the incumbent, was offered the overtime opportunities, but he
declined to work on his rest days. Nor is it disputed that, contrary to written
instructions previously issued by Carrier to Supervisors, Supervisor Mazzarella did not
call the senior available Foreman (Claimant Davis). Instead, he worked these weekend
overtime hours himself and challenged Claimant to "file a time claim."
Under date of September 5, 1992, the BMWE Vice Chairman filed the instant
claim. In denying the claim on the property, Carrier Supervisor alleged that Supervisor
Mazzarella did not offer the overtime to Claimant because Mr. Davis rarely worked
overtime even when it was offered and that all the other Foremen declined to work
overtime on the weekends in question. In rebuttal, the Organization provided Carrier
with the following written response from Claimant, which was never contested or
contradicted in handling on the property:
".
. . In reference to time claim dated 9-5-92 Mr. Mazzarella's statement
is a flat out lie, to cover his operations. On 7-1-92 I informed Mr.
Mazzarella that I was available and qualified to work all overtime with
contractor that Mr. Hayduck (sic) did not wish to work. He told me that
if this was the call he was going to work with the contractor and I would
has (sic) to time claim him. From that time on, I and other Foremans have
asked him on numerous occasions if there was any overtime with
contractor and each time he told us that there was none that he knew of.
It was a known fact that he was working all overtime, and playing games
with us ....
/S/ George Davis"
·./
Form 1
Page 3
Award No. 33149
Docket No. MW-31774
99-3-94-3-53
The Supervisor's action deprived the Claimant
of
his contractual right to be
called in accordance with his relative standing within his assigned classification and
allowed to work on July 11-12, August 9-15 and August 16-23, 1992. 1t is not disputed
that Supervisor Mazzarella consumed a total
of
74 hours performing this rest day
service. The appropriate compensatory damages is 74 hours at the overtime rate
of
pay
Claimant would have earned absent the violation
of
the Agreement. See Third Division
Awards 31362, 31379, 31453, 31514, 31759 and 32107.
AWARD
Claim sustained.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimants) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 25th day
of
March 1999.
.r'
Carrier Members' Dissent
to Award 33149 (Docket MW-31774)
(Referee Eischen)
Claimant had previously refused to work overtime. Carrier attempted to call
the incumbent, but he declined as did all the other foremen. Claimant's statement,
on which this Majority relies, is lacking in evidence. It makes assertions without
presenting any evidence in support. Carrier noted, in the on-property handling,
that such statement was, "self-serving at best, as it fails to add evidence ...." It
created conflict.
Given these facts, this Award provides a windfall which will only encourage
others to try the same tactic.
We Dissent.
Paul. V. Varga
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Martin W Fi~erhut
Michael C. Lesnik
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