Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33641
Docket No. MW-32598
99-3-95-3-527
The Third Division consisted of the regular members and in addition
Referee Robert M. O'Brien 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 Carrier violated the Agreement when it assigned junior
employes to perform track work, i.e., rubbing out spikes and
distributing tie plates and pandrol clips, in the vicinity of Mile Post
50.6 at Paintsville, Kentucky on Friday, October 7, 1994, instead of
assigning the Claimants who were senior and available to perform
such work [System File 21(38) (94)/12(94-940) CSX].
(2) As a consequence of the violation referred to in Part (1) above,
Claimants R. D. Claiborne, E. L. Siler, K. R. Marple and J. C.
Stephens shall each be allowed eight (8) hours' pay at the applicable
overtime rates."
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 Award No. 33641
1400
Page 2 Docket No. MW-32598
99-3-95-3-527
Parties to said dispute were given due notice of hearing thereon.
In October 1994, the Claimants were assigned to System Production Gang
SXCS. The gang was assigned to work Monday through Thursday ten hours
each day. Friday, Saturday and Sunday were rest days for the gang.
On October 6, 1994, System Production Gang SXCS was working in
Paintsville, Kentucky. Three of the Claimants reside in Tennessee and one
resides in Kentucky, a considerable distance from Paintsville.
Four members of System Production Gang SXCS worked overtime in
Paintsville on Thursday, October 6 and Friday, October 7, 1994. Each of these
employees was junior to the Claimants. The overtime involved operation of a
spike removal machine to "rub out" spikes, as well as the distribution of tie plates
and pandrol tie clips in preparation for work the following week. The Claimants
were qualified to perform these tasks.
On December 1, 1994, the Organization filed a claim on behalf of the
Claimants contending that they should have been given the opportunity to work
overtime on Friday, October 7, 1994, rather than employees junior to them.
Section 7 - Overtime of the September 28, 1993 System Production Gang
(SPG) Agreement provides, in pertinent part, that:
"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. If no
employee desires to work overtime and overtime is required,
the junior qualified employee in the System Gang involved
will work the overtime."
WSW
low
At issue in this dispute is whether the Claimants were offered the
opportunity to work overtime on October 7, 1994. If they were, in fact, offered
overtime for Friday, October 7, 1994 and refused it, then the Carrier had the
Form 1
Page 3
Award No. 33641
Docket No. MW-32598
99-3-95-3-527
right under Section 7(B) of the SPG Agreement to offer it to junior employees in
the gang.
The Carrier contends that approximately one and one-half hours before
completion of work on Thursday, October 6, 1994, all members of System
Production Gang SXCS were asked by Assistant Roadmaster R.D. Arledge if they
wished to work overtime on Thursday, October 6 and Friday, October 7, 1994,
rubbing out spikes, throwing out spikes, and throwing out clips and plates.
According to the Carrier, only four employees showed an interest in working the
overtime and they were assigned it. It contends that the other members of the
gang boarded the bus and returned to the hotel to prepare for their trip home for
the weekend.
Save for Track Repairman K. R. Marple, none of the Claimants denied the
Carrier's assertion that Assistant Roadmaster Arledge had offered them the
opportunity to work overtime on Friday, October 7, 1994. Therefore, this
contention stands unrebutted. Inasmuch as these Claimants declined the
opportunity to work overtime, Section 7(B) of the SPG Agreement gave the
Carrier the right to assign this overtime to junior members of the gang.
Track Repairman K. R. Marple denied that he was offered overtime for
Friday, October 7, 1994. The Carrier has not refuted his contention. For
instance, Assistant Roadmaster Arledge never claimed that Track Repairman
Marple was unquestionably present when he offered the gang overtime for
October 7, 1994. In light of these particular circumstances, Claimant Marple is
entitled to compensation for the overtime worked by a junior member of the gang
on October 7, 1994.
AWARD
Claim sustained in accordance with the Findings.
Form 1
Page 4
Award No. 33641
140
Docket No. MW-32598
99-3-95-3-527
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 16th day of November 1999.