Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33326
Docket No. MW-32544
99-3-95-3-449
The Third Division consisted of the regular members and in addition Referee
Marty E. Zusman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier allowed truck
drivers assigned to SPG Gang 5XC6 to perform overtime work
unloading equipment on August 11, 1994, instead of assigning Mr.
G. J. Seib who was a member of the equipment unloading gang
[System File 21 (31) (94)/12 (94-828) CSXj.
(2) As a consequence of the above-stated violation, Claimant G. J. Seib
shall be allowed four (4) hours' pay at the applicable time and onehalf 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 Award No. 33326
Page 2 Docket No. MW-32544
99-3-95-3-449
On August 11, 1994, Foreman Fugate on Gang 5XC6 at North Vernon, Indiana,
utilized Truck Drivers to unload equipment at the end of the day for movement to
Dayton, Ohio. The Organization argues that the Claimant was a member of the
unloading crew who was available, asked for the work and was denied his rights under
Section 7(B) of the SPG Agreement. The Claimant's written statement confirms
availability and his request for the work, stating that "I asked Mr. Fugate about going
over and unloading the equipment at Dayton, [and] he said that they (the truck drivers)
would handle it."
The Carrier asserted that there was no validity to the claim because the unloading
of equipment was "not the exclusive work of any classification of employee." It denied
that the Claimant was available and further denied any violation of the disputed Rule.
The merits of this claim pertain to Section 7 - Overtime of the SPG Agreement,
which states in pertinent part:
"B. The right to work overtime, when required on System Gangs,
will accrue first to the incumbent of the position of which the
overtime is required. If declined by the incumbent, overtime
will be performed by the senior qualified employee in the
System Gang indicating a desire to work overtime."
The central issue is whether the Carrier had the right to deny the Claimant overtime for
the work performed in this dispute.
In this case, after the Carrier denied applicability of Section 7(B) to the unloading
of equipment, there is a rebuttal by the Organization that does not carry the force of
sufficient weight. The Organization states that the Carrier's argument "is not entirely
correct." A full and careful reading of the probative evidence does not prove that the
work in dispute belonged to an "unloading crew" or was encompassed by the SPG
Agreement. Unloading of equipment is not found within the language and provisions of
the SPG Agreement and there is no evidence of record that it was either added by
practice or addendum.
In summary, the Board considered the issue in light of the record. We find most
applicable Third Division Award 32914, which similarly concluded that the
Organization failed to demonstrate that the "disputed preparatory work was SPG Gang
Form 1 Award No. 33326
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99-3-95-3-449
work." Nothing in this record persuasively proves that the unloading of equipment
could not have properly been performed by the Truck Drivers who did the work.
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 17th day
of
May 1999.