Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36051
Docket No. MW-36191
02-3-00-3-388
The Third Division consisted
of
the regular members and in addition Referee
Margo R. Newman when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned Shop Craft
employe P. Sleigher to perform the duties
of
B&B foreman on
August 24, 25, 26, 27, 28 and 31, 1998 instead
of
assigning B&B
employe D. Mullenhoff to perform said duties (Carrier's File
BMWE-353 NRP).
(2) As a consequence
of
the violation referenced in Part(1) above,
Claimant D. Mullenhoffshall now be compensated for the difference
in pay between that
of
which he was paid as B&B mechanic and
that which he would have been paid had he properly been assigned
to perform said B&B Foreman duties."
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. 36051
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02-3-00-3-388
Parties to said dispute were given due notice of hearing thereon.
The issue raised in this case is whether the Carrier violated Rule 8 by filling the
vacation absence of B&B Foreman Lesniak with Electrician Sleigher rather than the
Claimant, who was the senior B&B Mechanic under Lesniak's supervision. The
pertinent provisions of Rules 8 and 18 are reprinted below.
"Rule 8 - BULLETIN, ASSIGNMENT AND DISPLACEMENT
Short vacancies of thirty (30) days or less may be filled by any available
qualified employee covered by this Agreement. However, if the employee
assigned to a short vacancy under this paragraph is other than the senior
employee, he may be displaced by a senior employee on written notice to
the supervisory official, provided written notice is made within five (5)
days after the position is first filled, or in accordance with paragraphs 3,
4, and 5 of this rule.
Rule 18 - VACATION
1. The December 17, 1941, Nonoperating National Vacation
Agreement, together with amendments and interpretations, is
adopted as the Amtrak-Brotherhood of Maintenance of Way
Employes Vacation Agreement. (See Appendix "C")
Appendix C, Section 12(b)
As employees 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 employee is to be filled and regular relief
employee is not utilized, effort will be made to observe the principle of
seniority."
The Organization argues that the Carrier violated Rule 8 by going outside the
Agreement to fill the Foreman's vacation absence. It points to the Claimant's written
statement as evidence that the vacation absence was filled by Sleigher, who relayed work
Form 1 Award No. 36051
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02-3-00-3-388
assignments to the Claimant, was the contact for problems, and reviewed time cards
during this period. While the Organization admits that the Carrier may blank a
vacation absence, it notes that once it chooses to fill the assignment, it must do so by
seniority. The Organization asserts that the Carrier submitted to the Board new
evidence in the form
of
time and pay records that cannot be considered in determining
whether Sleigher filled the Foreman's vacation absence.
The Carrier contends that Rule 8 is inapplicable, because Rule 18 makes clear
that absences due to vacation do not constitute vacancies, and notes that it has the option
of
filling or blanking such position. The Carrier argues the Organization failed to
suffciently prove that it, in fact, filled this vacancy, especially in light
of
its repeated
assertion and supporting evidence that it blanked the position, and that Sleigher's
performance
of
the few tasks noted by the Claimant were de minimis, and do not prove
that he filled the position which encompasses far more than what he did. The Carrier
asserts that even
if
Rule 8 applied, the Claimant's failure to meet his obligation
of
serving written notice to the Carrier
of
his desire to fill the position undermines any
claim he may later assert to his entitlement.
A careful review
of
the record convinces the Board that, under the facts
of
this
case, the Organization failed to sustain its burden
of
proving a violation
of
the
Agreement. The parties appear to acknowledge that an absence due to vacation is not
to be considered a vacancy, and that it may be filled or blanked at the Carrier's option.
The Carrier repeatedly asserted that it was blanked, while the Organization presented
the Claimant's statement that Sleigher performed specific Foreman's functions during
this time period in support
of
its contention that it was filled. On the property, the
Carrier did not dispute these underlying facts, but only the conclusion that such de
minimis functions constituted filling the position. We have not considered any new
documentary evidence presented by the Carrier for the first time to the Board.
The Organization's claim is based upon an alleged violation by the Carrier
of
Rule 8. The Board finds that it need not decide whether the position was, in fact, filled
or blanked because the Claimant, whose entitlement to the work is premised on Rule 8,
failed to meet his obligations thereunder. It is undisputed that the Claimant did not give
written notice to the Carrier within five days
of
Sleigher's alleged assumption
of
the
Foreman position,
of
his desire to displace him as the senior qualified employee. Had
he done so, the Carrier could have either proven that it had blanked the position or
reconsidered its assignment. The Claimant's failure to notify the Carrier
of
his desire
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02-3-00-3-388
to fill the position prior to instituting the instant claim, defeats his attempt to be
compensated for the work assignment. The Organization's argument on the property
that the Carrier should have known of the Claimant's interest in the position based upon
past claims
of
a similar nature is insufficient to meet the Claimant's underlying Rule 8
obligation.
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 21st day of May, 2002.