Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36993
Docket No. MW-36077
04-3-00-3-157
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Missouri
( Pacific Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and/or
refused to provide senior Trackman J. Hawkins with accurate
information concerning the location of Gang No. 4138 while the
Claimant was attempting to exercise his seniority on November
4, 1998 (System File MW-99-77/1175658 MPR).
(2) As a consequence of the aforesaid violation, Mr. J. Hawkins
shall be compensated for ". . . four (4) hours at the claimant's
respective straight time rate of pay and mileage at the rate of
$.32.5 from Rosenberg, Texas to Englewood Yard, located at
Houston, Texas account G.M.S. gave claimant incorrect
information and made him perform unnecessary traveling and
forced him to loose a days pay with regard to the exercising
and protecting his seniority when making a displacement."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 36993
Page 2 Docket No. MW-36077
04-3-00-3-157
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.
According to the Organization, on November 2, 1998, the Claimant, a
Trackman, called the Carrier's G.M.S. office in Omaha, Nebraska, to exercise his
seniority. Further, according to the Organization, the Claimant was specifically told
by G.M.S. that he could bump an employee on Gang 4138 and that he should report
to Rosenberg, Texas, on November 4, 1998. According to the Organization, the
Claimant followed those instructions, but, upon his arrival at Rosenberg, he learned
that the gang had moved on to Englewood Yard in Houston. This claim followed
seeking to make the Claimant whole.
The Carrier disputes the Organization's factual assertions and argues that
the gang was an on line gang and the Claimant should have known to contact the
supervisor to find out the exact location of the gang.
According to the Claimant's statement:
".
. . on 11-2-98 called Omaha Nebr. to Mr. Pete Kauls to place a
bump. I was told about online Gang 4138 I was to place a bump
Wed 11-4-98 Mr. Kauls told me be in Rosenberg TX wed morning
at 7:00 AM 11-4-98 I went to Rosenberg TX. was there wed
morning at 6:40 AM. to go to work The Gang wasn't there. Signal
Maintenance Jackson told me he would call the supervision Bobby
Andrews so be Called and sup. Andrews said the Gang 4138 was in
Houston Englewood Yard, but it was to late to drive from Rosenberg
to Houston to Bump at 7:00 AM Starting time I went to Houston
Thurs 11-5-98 and bump R. Mouzo but only was paid 4 hours for
11-4-98 which I want to Claim 4 hrs for 11-4-98 because I was sent
to wrong Location. I think I should have Received 8 brs."
]Form 1 Award No. 36993
]Page 3 Docket No. MW-36077
04-3-00-3-157
What is crucial here is the factual statement from the Claimant dated
December 2, 1998 and attached to the Organization's April 8, 1999 letter that he
was specifically instructed by the Mr. Kauls to report to Rosenberg, Texas ("Mr
Kauls told me be in Rosenberg TX wed morning at 7:00 AM 11-4-98.") While the
Carrier disputes the accuracy of the Claimant's assertion, there is nothing from the
maker of the instruction to the Claimant - i.e., from Mr. Kauls in the Carrier's
G.M.S. office in Omaha -to refute the assertion that Kauls told him to report to
Rosenberg, Texas, at 7:00 A.M. on November 4, 1998 to exercise his seniority. The
Claimant's unrefuted assertion therefore stands as fact. See Third Division Award
28140:
"We agree this Board cannot resolve factual disputes. We do not
agree we are faced with such a dispute here. Claimant's statement
contains specific dates and detailed accounts of conversations he
alleges he had with the clerk. Nowhere in the clerk's statement does
be deny Claimant called him. In fact he states Claimant may have
done so. Nowhere does he deny the statements attributed to him by
the Claim statement as a denial of Claimant's version of their
conversation. Rather we find it non-responsive to the allegations
and do not view it as giving rise to testimonial or factual conflict."
Thus, the undisputed factual evidence shows that the Claimant followed the
instructions given to him and reported to Rosenberg, Texas, on the specified date
and time as directed, only to find that the instructions were given by the Carrier to
report to a location where the gang was no longer present. The Claimant relied
upon the information given to him by the Carrier. The Claimant should not be
penalized because the Carrier gave him the wrong information. The Claimant shall
therefore be made whole as requested in the claim.
AWARD
Claim sustained.
Form 1 Award No. 36993
Page 4 Docket No. MW-36077
04-3-00-3-157
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 18th day of May 2004.