Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33624
Docket No. MW-32413
99-3-95-3-293
The Third Division consisted of the regular members and in addition Referee
Martin H. Malin 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 junior
Equipment Operator J. C. Taylor to perform overtime work
assisting with the installation of a new work head on TRW 9101 on
Tuesday, July 5,1994, instead of assigning Mr. R. L. Spurgeon who
was senior and available [System File SPGTC-9555/12(94-655)
CSX].
(2) As a consequence of the violation referred to in Part (1) above,
Claimant R. L. Spurgeon shall be allowed eight (8) hours' pay at the
applicable equipment operator'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
Award No. 33624
Docket No. MW-32413
99-3-95-3-293
On July 5,1994, the Carrier assigned a Mechanic, the Operator of Tamper TRW
9101 and the Operator of Tamper TRW 9103 to perform overtime work. The Claimant
had greater seniority than the Operator of TRW 9103. The Organization contends that
the Carrier violated Section 7 of the System Production Gang Agreement by assigning
the overtime to the junior Equipment Operator.
Section 7(B) provides:
"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. If no employee desires to work overtime and overtime is
required, the junior qualified employee in the System Gang involved will
work the overtime."
The Organization submitted a statement from the Operator of TRW 9101 stating
that the only overtime work that was performed involved his machine and that the work
head on TRW 9103 was not replaced. If this statement is credited, Rule 7(B) required
the Carrier to offer the overtime to the Claimant because he was senior to the Operator
of TRW 9103.
The Carrier submitted a statement from the Foreman relating that the Operator
of TRW 9103 was required to stay late to replace the work head on his machine. If this
statement is credited, the overtime was properly assigned to that Equipment Operator,
as the incumbent, under Rule 7B.
The record thus presents us with an irreconcilable dispute as to the facts. As an
appellate body, we are not in a position to take testimony, evaluate witness credibility
and resolve such factual disputes. Faced with such a situation, we have no choice but
to dismiss the claim. See e.g., Third Division Award 33416.
AWARD
Claim dismissed.
Form 1
Page 3
Award No. 33624
Docket No. MW-32413
99-3-95-3-293
ORDER
This Board, after consideration ofthe dispute identified above, hereby orders that
an award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 16th day of November 1999.