Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35848
Docket No. MW-34663
01-3-98-3-249
The Third Division consisted of the regular members and in addition Referee
Steven M. Bierig when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Grand TrunkWesternRailroadCompany (former Detroit,
( Toledo and Ironton Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned Tie Crane
Operator D. McLean to perform foreman's duties while the
incumbent foreman was on vacation on August 19, 1996 through
September 5, 1996 instead of assigning Mr. E. A. Young to fill the
vacation vacancy and perform the work in question (System File
DTI037/8365-1-577 DTI).
(2) As a consequence of the violation referred to in Part (1) above, Mr.
E. A. Young shall be allowed the difference in pay between what he
earned and the foreman's rate of pay plus all overtime earned by
Mr. D. McLean while working the foreman's position during the
period in question."
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 1 Award No. 35848
Page 2 Docket No. MW-34663
01-3-98-3-249
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
The facts of this matter do not appear to be in dispute. Between August 19 and
September 5, 1996, Track Foreman K. Seedorf of DTI/DTSL Tie Gang No. 2 observed
vacation. In his absence, the Carrier assigned Tie Crane Operator D. McLean to the
Foreman's position. McLean has no Foreman seniority. At the time, Claimant, E. A.
Young held seniority as a Track Foreman, dating from May 31, 1989. During the term
of Foreman Seedorf
s
vacation, the Claimant was not furloughed and was working at
another location.
The Carrier takes the position that under Rule 4(a) it had the right to not use
seniority when filling Foreman Seedorf
s
position:
"A new position or vacancy may be filled temporarily, at the discretion of
Management, pending permanent assignment."
Under Rule 4(a) the Carrier asserts that it had the right to look beyond seniority
in filling the position. The Carrier states that while Rule 4(d) mandates the Carrier to
select furloughed employees in seniority order, the Claimant was not on furlough and
thus this provision is not applicable. Further, the Carrier contends that the claim is
excessive because the Claimant was working during Foreman Seedorf's vacation.
The Organization takes the position that Rule 12(b) controls the instant situation.
Rule 12(b) provides:
"As employes exercising their vacation privileges will be compensated
under this agreement during their absence on vacation, retaining their
other rights as if they had remained at work, such absences from duty will
not constitute `vacancies' in their positions under any agreement. When
the position of a vacationing employe is to be filled and regular relief is not
utilized, effort will be made to observe the principle of seniority."
(Emphasis added)
Form 1 Award No. 35848
Page 3 Docket No. MW-34663
01-3-98-3-249
However, the Organization did not raise Rule 12 on the property. It was raised
in its Submission and before the Board. The Carrier objected and indicated that
because such argument was not raised on the property, the Board may not consider it.
After a review of the evidence, the Board finds that the Organization was unable
to sustain its burden of proof in this matter. While the Organization may be correct that
Rule 12(b) would control the situation had it been properly raised on the property, it was
not. Thus, the Organization has been unable to prove that the Claimant should have
been placed in the position of Foreman in place of Foreman Seedorf.
Thus, the claim is denied.
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 18th day of December, 2001.