Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36054
Docket No. MW-33283
02-3-96-3-769
The Third Division consisted of the regular members and in addition Referee
Gerald E. Wallin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Santa Fe Railway (former Fort
( Worth and Denver Railway Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier improperly allowed
Mr. P. Ramirez to displace Section Foreman V. T. McKay at
Plainview, Texas on August 7,1995 (System File F-95-20/MWD 9510-26AA FWD).
(2) As a consequence of the aforesaid violation, Mr. V. T. McKay shall
be restored to the foreman's position at Plainview, Texas and he
shall be compensated `*** one hundred forth (140) miles each day,
at thirty cents a mile, for a total of Forty Two ($42.00) dollars a
day, and further that he be compensated four and seven tenths (4.7)
hours each day at this respective time and one half (1%) rate of pay
(computed at two minutes a mile personal travel time) for each day -
he is forced to work away from his headquarters at Plainview,
Texas.' beginning August 7,1995 and continuing until the 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.
Form 1 Award No. 36054
Page 2 Docket No. MW-33283
02-3-96-3-769
The parties have diametrically opposing assertions about the focus of this claim.
The Organization and the Claimant contend that P. Ramirez exhausted his displacement
rights when he bumped and actually filled the Foreman position on August 4,1995 that
was held by Foreman Roach on the Amarillo Spot Patrol Gang. As a result, Ramirez
was not legally entitled to bump the Claimant's position at Plainview on August 7,1995.
The Carrier, on the other hand, maintains that Ramirez canceled his plans to bump
Roach and did not actually work in Roach's position - instead, Ramirez filled a vacant
position on August 4, 1995 and Roach worked his own position and was not bumped. As
a result, Ramirez did not exhaust his entitlement to exercise seniority and was legal to
bump the Claimant at Plainview on August 7, 1995.
When the Carrier refuted the Organization's assertions, the Organization was
required to support its contentions with probative evidence. It failed to satisfy this
burden of proof obligation. Consequently, we must deny the claim.
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.