Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36031
Docket No. MW-35780
02-3-99-3-761
The Third Division consisted
of
the regular members and in addition Referee
Nancy F. Eischen when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier removed Mr. R.L.
DeSmith from his assigned (speed swing operator) position and
instructed him to fill a lower rated position producing a lower
hourly rate
of
pay beginning August 1 and continuing into
November 1997 (System File 81.219/8-00336).
(2) As a consequence
of
the violation referred to in Part (1) above,
Claimant R. L. DeSmith ` . . . shall now be reimbursed for the
difference in pay for time worked between the Speedswing
operator's rate
of
pay and 5A Machine Operator's rate
of
pay from
August 1, 1997 until the Tie Gang work ended in November
($15.62-$15.29=.33x514 hours=$173.03) at the pro rata rate and
have all overtime, vacation, fringe benefits, and other rights
restored which were lost to him as a result
of
the above violation."'
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.
The Claimant holds seniority in various groups and ranks within the Track
Subdepartment. Prior to August 1, 1997, the Claimant was regularly assigned, by
Form 1 Award No. 36031
Page 2 Docket No. MW-35780
02-3-99-3-761
Bulletin No. 101A to a Group 1, Rank C Machine Operator (speed swing) position with
the production Rail Gang. Under circumstances which are in material conflict in the
present record, on or about August 7,1997 the Claimant left that Rail Gang position and
moved to a Group 5, Rank C position on the Tie Gang on the Paynesville Subdivision.
The record indicates that he worked that latter job until the end of November, when he
and other employees received Rule 12 Force Reduction seasonal layoff notices during
Thanksgiving Week 1997.
On December 10,1997, the Organization filed the following claim on behalf of the
Claimant, alleging a failure by the Carrier to comply with the notice requirements of
Rule 12 Force Reduction in connection with his departure from the Rail Gang some four
months earlier in August 1997. That claim read in pertinent part as follows:
"Claim is hereby presented on behalf of Robert L. DeSmith for the
Carrier's continued violation of Rules 12, 47 (Appendix H), not
exclusively, of the Schedule Agreement dated October 1, 1987, and as
subsequently amended.
According to our information, the Claimant was assigned as Speedswing
Operator on May 23, 1997. On August 1, 1997, the Carrier reduced the
crew on the Rail Gang, removed the speedswing from the consist, and
directed the Claimant to fill a 5(a) Machine Operator position on a Tie
Gang working at Paynesville. This was done without releasing him from
his previous position. As a result, the Claimant was paid at a lower rate
of pay for the duration of Tie Gang work, not released to bid or displace
to a position of his choosing, and therefore placed at a disadvantage both
monetarily and geographically. Because the Claimant was not released
from the Speedswing Operator position, he was not allowed to bid to an
Extra Gang Foreman position on the former Milwaukee side, one his
seniority would have allowed him to receive.
As a remedy for the above violation, Claimant De Smith shall now be
reimbursed for the difference in pay for time worked between the
Speedswing operator's rate of pay and 5(a) Machine Operator's rate of
pay from August 1, 1997 until the Tie Gang work ended in November
($15.62-$15.29=.33x514 hours=$173.03) at the pro rata rate and have all
overtime, vacation, fringe benefits, and other rights restored which were
lost to him as a result of the above violation."
The Carrier denied the claim, stating that when the Claimant's Speed Swing
position was abolished on August 1, 1997, he was instructed to bid a position if he
wanted to continue to work. However, a 5(a) vacancy opened when the Production Crew
moved from the Carrington Division to the Paynesville Subdivision, and the Claimant
Form 1 Award No. 36031
Page 3 Docket No. MW-35780
02-3-99-3-761
opted to fill the 5(a) position as offered, according to the Carrier. Specifically, the
Carrier stated that:
"This position was offered to Mr. DeSmith if he elected to fill the 5(a)
position. Contrary to the Organization's claim, Mr. DeSmith was not held
to the 5(a) position and could have bid on any open positions and he would
have been released. Mr. DeSmith chose to stay on the Soo side on his own
behalf."
The material conflict in the record of this case concerning the facts and
circumstances of the Claimant's movement from the Rail Gang to the Tie Gang in early
August 1997 remained unresolved throughout handling on the property and persisted
throughout handling before the Board. The inadequacy of the record prevents an
informed judgement by the Board on the merits of the claim and requires that we
dismiss the claim for failure of proof.
AWARD
Claim dismissed.
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 21st day of May, 2002.