Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36218
Docket No. MW-35687
02-3-99-3-628
The Third Division consisted of the regular members and in addition Referee
Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned junior
employe T. Jones to operate a Class One crane beginning May 28
through June 20, 1996, instead of assigning senior Machine
Operator T. D. Petty (System Docket MW-5177).
(2) As a consequence of the violation referred to in Part (1) above,
Machine Operator T. D. Petty shall now ` . . . be made whole for
the difference in wages during the period of May 28,1996 through
June 20,1996. Additionally, all lost credits and/or benefits must be
included. ***"'
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. 36218
Page 2 Docket No. MW-35687
02-3-99-3-628
On Rail Gang 320, a temporary position on a Gallion crane was established from
May 28 through June 20, 1996. This carries a higher wage rate than that of Class 1
Machine Operator, the classification of the Claimant and the employee assigned to the
position. There is no dispute that the Claimant was the senior employee and should
have been offered the temporary position on the Gallion crane.
The remaining dispute is whether the Claimant was offered the position. The
Carrier states that the Claimant was offered the position and refused, as memorialized
by a note from the Rail Train Engineer, which stated in part as follows:
"I Ernie Smith and Chester Craque asked (the Claimant) to run a Crane.
He was at the time running a Portec Anchor Applicator. He said he
would rather continue operating the same machine. . . :'
The Claimant responded with the following note:
"I . . . at (no) time did I refuse to run the Class One crane (which) Mr.
Smith said I did. He lied about that because he did not even ask if I
wanted the job. He just put whomever he want in the crane . . . . I ask
(Assistant Foreman) Willie Jordan how come I wasn't ask to run the
crane and he said he told Mr. Smith that I was the next senior man for the
job. And Mr. Smith said we'll leave him on the Portec, because we don't
have anyone else to run the Portec Mach."
At first impression, this would appear to be an irreconcilable difference as to the
facts. The Board, however, finds sufficient basis to accept the Claimant's version. The
Rail Train Engineer's note was introduced into the record two years after the event.
It includes a date of "May 28,1996" (the date the temporary position commenced), but
this date appears to be in a different handwriting.
Further, the Carrier had the opportunity to confirm or dispute the alleged
statement of the Assistant Foreman, as related by the Claimant, but did not do so. In
addition, there was no confirmation from the other employee whom the Rail Train
Engineer stated was present when the offer was allegedly refused.
The Carrier repeatedly (and accurately) reminds the Board, in this and other
instances, that the burden for proving a Rule violation rests with the Organization.
Form 1 Award No. 36218
Page 3 Docket No. MW-35687
02-3-99-3-628
However, where the Carrier on its own initiative offers information in support of its
action, the burden of proof shifts. Such affirmative defense must be convincing to be
accepted. Here, the Carrier introduced the Rail Train Engineer's statement; when
challenged, the Carrier did not or was not able to corroborate the Rail Train
Engineer's allegation.
AWARD
Claim sustained.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimant(s) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 24th day of September 2002.