PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33421
Docket No. MW-32465
99-3-95-3-377
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
(Soo Line Railroad Company (former Chicago, Milwaukee,
( St. Paul and Pacific Railroad Company)
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier called and assigned
junior Section Laborer J. Gordon from the Dubuque Section Crew
to perform overtime service (unloading rip rap) between Mile Posts
60 and 66 on the Guttenberg Section territory on Saturday, March
5 and Sunday, March 6, 1994, instead of calling and assigning
Senior Section Laborer R. E. Lang from Guttenberg Section Crew
743 (System File C-06-94-S290-01/8-00196).
(2) As a consequence of the aforesaid violation, Guttenberg
Sectionman R. E. Lang shall be allowed nineteen (19) hours' pay at
his applicable 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.
Form 1
Page 2
Award No. 33421
VW
Docket No. MW-32465
99-3-95-3-377
Parties to said dispute were given due notice of hearing thereon.
The Carrier assigned the work of unloading rip rap to a junior unassigned
employee on March 5 and 6, 1994. The Claimant was the senior available employee and
was not assigned the overtime work which took place with his regularly assigned
Guttenberg Section Crew on his territory between Mileposts 60 and 66. The
Organization alleges violation of the Agreement in that the junior employee was given
the overtime even though he was off the Dubuque Section, rather than the Claimant off
the crew that regularly performed work on this territory.
The Carrier does not deny that the junior employee performed the overtime work,
but holds on property that the Claimant declined weekend overtime on numerous
occasions and that the employee assigned was the senior employee on the Dubuque
Section who wanted weekend overtime. The Carrier asserts that the work was
originally planned for the Dubuque Section on the claim dates, but due to serious
problems with track availability a last minute unplanned change to the Guttenberg
Section was necessitated.
As a preliminary point, the Carrier has raised several new arguments in its
submission which were not raised on property. Neither the quick filing of this claim, nor
those arguments which come too late for our consideration are deemed relevant to
deciding the issues at bar.
The seniority issue is at the center of this dispute. The assignment of the most
senior employee for weekend overtime did not occur in this instance. The record on the
property provides a prima facie case that the Claimant was the regularly assigned
employee to the Guttenberg Section territory where the work was performed. The
Organization provided evidence that the employee assigned the work was regularly
assigned to the Dubuque Section Crew.
The Carrier raised an affirmative defense that rested on two points. First, the
Carrier argued that the work was changed due to a last minute problem with scheduling
trains. In essence the Carrier is arguing that there was an emergency problem that
necessitated the utilization of the senior employee off the Dubuque Section. Secondly,
the Carrier asserts that it did not use the Claimant in that he "repeatedly turned down
weekend overtime work to unload riprap." The Carrier maintains that the Claimant
was voluntarily and consistently unavailable for the work. It is axiomatic that the party .. r
Form 1
Page 3
Award No. 33421
Docket No. MW-32465
99-3-95-3-377
asserting an affirmative defense has the obligation to provide support for their position.
The Board has searched the record for evidence of either condition that would
necessitate the Carrier's actions or proof that the Claimant was avoiding overtime. The
Board finds no such proof. On the contrary, the Organization has provided evidence to
demonstrate no abnormal Carrier operations for work Train 991, as well as the
Claimant's letter indicating that he had worked weekend overtime doing riprap.
Therefore, and finding no argument on remedy while on the property, the claim must
be sustained as presented.
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 13th day of July 1999.
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