Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35824
Docket No. TD-36322
01-3-00-3-561
The Third Division consisted of the regular members and in addition Referee
Herbert L. Marx, Jr. when award was rendered.
(American Train Dispatchers Department
( International Brotherhood
of
Locomotive Engineers
PARTIES TO DISPUTE:
(Burlington Northern Santa Fe Railway Company
STATEMENT OF CLAIM:
"The Burlington Northern Santa Fe Railroad Company (hereinafter
referred to as `the Carrier') violated the current effective agreement
between the Carrier and the American Train Dispatchers Department,
Brotherhood
of
Locomotive Engineers (hereinafter referred to as `the
Organization'), Article 2(e) and 7(a)
of
the Memorandum
of
Agreement
dated March 5, 1974, Item 2 in particular, when on November 13 and 14,
1999 the Carrier allowed and/or required train dispatcher S. L. McKinney
to protect a position other than her assigned position and failed to provide
the proper compensation for this use of Ms. McKinney on an assignment
other than the one chosen in the exercise of seniority.
The Carrier must now compensate Ms. McKinney for wages lost as the
result
of
this violation, wages based on the difference between the pro rata
rate and the overtime rate
of
pay for train dispatcher for eight (8) hours
for both
of
the aforementioned dates, wages computed to be $221.80."
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.
Form I
Page 2
herein.
Award No. 35824
Docket No. TD-36322
01-3-00-3-561
This Division of the Adjustment Board has jurisdiction over the dispute involved
Parties to said dispute were given due notice of hearing thereon.
On October 25, 1999, the Claimant was awarded Illinois Relief Position No. 3,
which was bulletined to begin on October 28, 1999. That position carried the following
schedule:
"Thursday & Friday
Saturday & Sunday
Monday
3 p.m. - 11 p.m. Ottumwa District
3 p.m. - 11 p.m. Mainline
3 p.m. - 11 p.m. C & I"
Article 2(e) reads in pertinent part as follows:
"An assigned train dispatcher required to work a position other than the
one he obtained in the exercise of his seniority . . . shall be compensated
therefor at the overtime rate of the position worked."
Side Letter No. 5 of Memorandum of Agreement dated February 26, 1997, as
amended by letter dated October 12, 1999, provides penalty pay when an employee,
having been awarded a regular position, is not released to the new position within 21
days. This memorializes the Carrier's limited right to delay an employee's release to a
new position, subject to this penalty.
The Carrier makes reference to the Claimant's prior position on the Guaranteed
Assigned Train Dispatcher Board, basically providing work or pay for five days a week,
assuming the employee is available. The Organization states this is "new" information
not properly before the Board. On the contrary, the parties well knew the Claimant's
prior status, and reference thereto in opposition to the Organization's contention is
obviously in order.
The simple fact is that, as a GATDB employee, the Claimant could be called for
assignments for which she was qualified. It follows that she could be called for daily
assignments which might or might not be identical to a daily assignment of the bulletined
position which she was awarded.
Form 1 Award No. 35824
Page 3 Docket No. TD-36322
01-3-00-3-561
The Organization points out, accurately, that the Claimant was assigned the
Ottumwa position on Thursday and Friday, November 11 and 12, an identical
assignment to that in her bulletined position. From this alone, the Organization argues
that she assumed her new regular position on November 11. Thus, when she was also
assigned to the Ottumwa position on November 13 and 14 (instead of the Main Line
position of her bulletined position), the Organization contends the Claimant was entitled
to the pay provided in Article 2(e).
The Carrier argues that the Claimant was held on her GATDB position until
November 18 (just within the 21 days prior to application of penalty pay under Side
Letter No. 5). The Carrier further offers a note allegedly sent to the Claimant on
November 18, 1999, stating as follows:
"You are assigned to Job ILR203 [the bulletined position] today Thursday,
Nov. 18 per Dispatchers Bulletin No. 470 Award Monday, Oct. 25, 1999."
The Carrier states this note was made known during the claim-handling
procedure on the property, while the Organization views it as "new argument" not
properly before the Board.
The Board need not resolve these irreconcilable views. The essence of this claim
is that the burden of proof of a contractual violation rests with the Organization. The
sole evidence provided by the Organization is that on November I1 and 12, the Claimant
worked a position encompassed on her new bulletined assignment (but which also would
have been a routine GATDB assignment even in the absence of any bulletined vacancy).
The coincidence of such two-day assignment is insufficient to establish that these
necessarily were the start dates for the bulletined assignment. Further supporting the
Carrier's contention that the new assignment commenced on November 18 is the
Organization's on-property Statement of Position in reference to the Claimant's
assignment thereafter, as follows:
"[The Claimant] protected the position 2d Trick Ottumwa [instead of
C & 1] on November 22, at the overtime rate for being used
off
assignment."
In sum, the Organization has shown that on November 11 and 12, 1999 the
Claimant's assignment was identical to that of her bulletined position. The
Form 1 Award No. 35824
Page 4 Docket No. TD-36322
01-3-00-3-561
Organization, however, has not provided probative evidence that this fact alone formally
assigned the Claimant to her bulletined position on November 11, 1999.
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 14th day of November, 2001.