Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37478
Docket No. MW-36352
05-3-00-3-547
The Third Division consisted of the regular members and in addition Referee
Ann S. Kenis when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed to call and
assign Section Foreman G. L. Purkey and Sectionman R. E.
Wahl to perform overtime service (load rail) at Borah, Idaho
on May 23, 1999 and instead assigned said overtime to Extra
Gang employe R. 1. Anderson and junior Sectionman C. R.
Reynolds (System File J-9935-61/1200388).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant G. L. Purkey and R. E. Wahl shall now each be
compensated for eight (8) hours' pay at their respective time
and one-half rates of pay."
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.
Form 1 Award No. 37478
Page 2 Docket No. MW-36352
05-3-00-3-547
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
This dispute involves an overtime assignment loading rail on Sunday, May 23,
1999 at Borah, Idaho. The Organization contends that Borah is located on the
Claimants' assigned territory and that the Claimants normally load rail on their
assigned shift. It is the Organization's position that the Carrier should have given
preference to the Claimants to work the overtime in question rather than to the
junior employees utilized. In support thereof, the Organization cites Rule 26(h)
which provides:
"WORK ON UNASSIGNED DAYS. Where work is required by the
Company to be performed on a day which is not a part of any
assignment, it may be performed by an available extra or
unassigned employee who will otherwise not have forty (40) hours of
work that week; in all other cases by the regular employee."
In denying the claim, the Carrier included the statement from the Manager
Track Maintenance insisting that the Claimants were asked to work the overtime
but they declined. Because they had informed the Carrier that they would be
unavailable, the work was assigned to junior employees who accepted the work
opportunity.
In response, Claimant Purkey provided a statement which he indicated was
also submitted on behalf of Claimant Wahl. The statement attests that the
supervisor "did ask, we all told him we had plans but to let us know if he was to load
rail on Sunday." Claimant Wahl did not submit a separate statement regarding his
availability on the claim date.
Given this state of the record, it is apparent that there is an irreconcilable
dispute as to the facts. Because the burden rests with the Organization to provide
sufficient proof to support its contentions, the conflict in the evidence requires a
finding that the Organization's burden has not been met. Therefore, the claim must
be denied.
Form 1 Award No. 37478
Page 3 Docket No. MW-36352
05-3-00-3-547
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 19th day of April 2005.