For T



                                                ®- 1--


The Third Division consiste of the regular members and in addition Referee Elliott . of stein hen award was rendered.

    (Brotherhood d of Maintenance of Way Employes TIE T O DISPUTE:

                  (BNSF Railway Company (former Burlington of

                  Railroad Company)


STATEMENT F C.
                  .


      " lai of the Syste Committee tBrotherhood tat:


          The Carrier violated the Agreement en it faile an refuse

          to allo District 11 Group acine Operator . . Sutton

          exercise his seniori rights n displace junior employe . .

          aljic on a District 1 Group Machine Operator (regulator)

          position on November 7 an , 199 (System File - -

          11-9 -0 ).


      ( ) s a consequence the violation referred tin art (1) above,

          Claimant . . Sutton shall neceivy for any an all

          hoursworked niremployeJ.J. aljic November n,1 9 ."


FINDINGS:
The Thir Division t Adjustment rd, upon the whole record and all t evidence, finds tat:

 e carrier carriers and the employee r employees involve in is dispute respectively carrier and employee within the meaning of the Railway Labor Act, approved June 21,193 .

    This Division f the Adjustment s jurisdiction over e dispute

involved herein.
 Form 1 . 7 0
    e t o. - 7

    ®-01- -7

    Parties to said dispute were given due notice of hearing thereon.

    The facts of this claim are essentially undisputed. t the time of this dispute,

the Claimant was assigned to District 11 Section mnlFlagmn position that was
 scheduled for abolishment on Friday, November , 199 , as of 4:00 P. M. close of
 shift. Just prior to the close, the Claimant contacted the Manpower Office and
 reste tislce junior District 11 Group Machine Operator . . aljic,

o was assigned to. te regulator .machine on the District 11 ice r, effective with the 4:00 . . close of aljic's shift. The Carrier allowed th

laimant's request as to the position, but did not allo him to ocupy it until the
 next regularly workday, Monday, November .

T Organization contends that the displacement should have bee allowed, s requested. According o the Organization, the Carrier's refusal tllo the displacement until Monday, November violated the Claimant's seniori rights under Rule .A and s contrary to the "clear and unambiguous" lngua of Rule ., regardi displacements.


The Organization further maintains that the Carrier's refusal to allo the displacement resulted in the Claimant's inabili to earn tours of overtime, pursuant tule 24.1, as the rightful incumbent of the regulator operator's position. Therefore, the Organization maintains tat, in light, f the Claimant's timely displacement request, the Claimant must a aid the overtime hours ore . J. aljic s regulator operator on the Surface Crew gan .


In response, the Carrier asserts tat J. J. aljic occupie and worked the
 Surface a regulator positio n Friday, November , the ray immediately'
 p preceding the unassigned days of that position. Thus, in its view, the Claimant's
 displacement was properly allowe as of f Monday, November 9, and Kraijic was
 correctly assigned a n the unassigned days of November 7 and
 ursuant t e Carrier's interpretation Rules .F and 24.1. The Carrier
 hasizes that, in its view, Rule 24.1 serves as an "exception" to Rule , is is
 silent n "the ability of an employee to exercise seniority for overtime work or work
 unassigned rest days."

 The Carrier moreover contends that t the volume of statements submitted by
 the Organization in supposed evidence f airier practallowing
                                            ice displacements unassigned s arcarries o probative l, a thus 1

r 1 : 7 01
 Page Docket . - 70
 g ®O1- w7

be rejected by the oar. Accordin to the Carrier, the statements are clearly "vague and noncommittal," and should a recognized by the Board as such. The Carrier adds that current or former Organization officials submitted several of te statements that, obviously, must be dismissed s "self-serving." With respect to

statement furnished by J. J. aljic, the Organization urges the Board to recnize that " aljic was paid the 24 hours of overtime on the claim dates, and if te Claimant's displacement had been allowed, ljic would be istlin n entirely different tune."


The Carrier argues that the Board isteasocredit the six statements submitted y its own Manpower Planners. Accordin to the Carrier, the statements are probative evidence that, consistent with what the Manpower Planners ere "taught" during their training, the "consistent practice" a been t refuse isplant ruests "for weekends, overtime situations or holidays." t tresses that, in the rare circumstance that such displacement might have n 1, such permission to displace would have constituted "n error."


The Board carefully reviewed the recor in this specific case n first notes tat the following Agreement positions are particularly relevant o the instant dispute.-


      "RULE -

      LIMITS


      ® ° hs accruing t e byes under their eniori entitles t

      to considertion for positions in accordance ith their relative

        length of service with to n, as hereinafter provided.


          . E U


      . Except s otherwiprovided se r i t s rules, a forces r

      reduced r positions abolished, ploy s affected ave t

      right t exercise siori rights over junior employes

      under the following conditions:

r
 ,Page

          . 7 1

Docket . -

 n employe who is listed on seniority roster containing relative seniori ranks hen affected by force reduction or abolition of positions must exercise seniority rights in the seniori rank in which then employed, either permanent

or temporary. If temporary, upon completion

displacement, the employee old again e governed by this rule before displacing aloes in the next succeeding lower seniority. rank n that seniority roster, or before displacing employee o

another seniority roster. Shoal such n a bye's
 seniority an ualictions not entitle e him to hold a,
 position in the seniority rank i which employed

hen affects force reduction abolition of positions, such an employe m y rCise seniority in the next succeeding lower seniority ran o such seniority roster or he ay exercise seniority in the highest rank over a Ion any other seniority


roster in which he holds seniority.

 Employes affetey force reduction r abolition
 positions wiring to exercit air seniority
 rights ill so dvise the Bridge ding
 Supervisor, Division aaster, or other
 designated supervisory an a playas ill
 notified as- soon practicable hen other
 e playas s have exercised their seniority rights to
 displace h

      y s affects force reduction abolition f positions

ho are displaced in the exercise e of seniority by other
 byes, must, if tey wire displace junior employes,
 exercise their seniority rights within calendar aye
 r r . 1
 Page 5 Docket No. MW-36570
 -3_01-3 ®7
 thereafter. If seniori is not so exercise 'd, such employee will
 forfeit all rights to displace other employes because of suc
 force reduction or abolition of positions, and will then be
 governed y Rule 9.
 NOTE: It is understood that the ten (10) calendar days referred
 to ithirle iclusive of any y scheduled vacation days.

      24. FORTY HOUR WORK WEEK


      I. Work on Unassigned s


          here work is required y the Company to a performed day which is not part of any assignment, it t may be performed

          y an available extra r unassigned a ploye ill otis

          not have for (40) hours of work that week; in all other cases

          y the regular employee."


      Having closely reviewe the entire record in this a fin that ere is n

ispute that the Claimant possessed legitimate right to displacement, pursuant to Rule .E.1, following his notification that his District 1ection man/Flagman position would e abolishe effective at the close of hisift, 4:00 . . on November
 ,199. In turn, J. J. ajlic was entitle to prompt notification f the Claimant's exercise of seniori over him, pursuant to Rule . E.3, a further note.

 The Claimant's greater seniority to that f . J. aljic furthermore is not in contention, as a coy of the pertinent seniori roster, included in the record, indeed confirmed. T sole issue, therefore, is whether the Claimant"s request t displace onto Kraljic's position of Regulator Operator on the District 11 Surface Crew,
 ffective at the close f raljic's : . . sift, , was properly denied, notwithstanding the fact that the Claimant was allowed to occupy the position on
 ,Monday, November ,.

For 1

age


r

                                        Docket . -

                                              05-3-01-3-78


The Carrier's position that J. J. aljic's right to overtime work on his
 unassigned work days of November 7 and ,199 superseded the Claimant's right
 to displace aljic riot to the unassigned work days is not supported the record
 and our reading of ale .F, the Board hols. First, Rule .F is silent with respect to
 the specific displacement request before us, s the Carrier has argued. s written,
 ale .F its clear terms, required that the Claimant must exercise his seniority
 within ten days of the abolishment of his position, r face a loss f seniority, s both
 parties seemingly agree. Additionally, the only written "exception" o the 1-day
 displacement period discussed in ale .is found in the bone " ote," which
 merely provides that the 1o-day period will a extended hen vacation days are
 involved, aid that clearly was not the situation here. Therefore, there is a gap in the
 ale's language as hat happens where overtime work is involved whether the
 visi of Rule .I serve as an exception tulthen..

 The plain language of ale .F i not prevent the Claimant fro om making the
 instant displacement request, s the Carrier stresses. s noted above, the Claimant
 vas required to displace within ten days or forfeit his seniority, n clean
 complied with the ale by reuesting displacement onto the regulator position
 that same day. Rule .F's silence with resect tarry prohibition against t making
 displacements n the "unassigned days" of position creates "gap'.' between the,
 ale an tactics, as just mentioned. Thus, the Carrier's assertion that "past
 tactics" exists and accordingly must prevail is logically correct, but lcs
 burden n the Carrier to demonstrate that it indeed tactics of consistently
 disallowing sac "bumps," a hold.

 s that specific pint, with res act to t a uali of the Carrier's proofs to the " tactics," the Board secicallfins fro the record that the Carrier's
 roofs in the form f six employee statements submitted in this specific record
 not car the a. lour view, e compared d with the numerous statements
 submitted by -represents employees having significant seniority n the
 craft, that a practice as to ltu s immediapreceding tely unassigned days,
 even if tis deprived ten-incu bent employees f overtime opportunities, e
 old that the artist's statements, prepared ed by Manpower Planners based on
 training sac one had rcive, essentially are hearsay proofs f a tactics a ere
 not persuasive evidence in support of the Carrier's contention that there was such a
 tactics "in fact."
 For rm 1 Award No. 37601
 Page 7 Docket . -36570
 _ _O1- -7

gain, we stress that the statements of three f the Manpower Planners do not, on their face, convince the Board tht a past practice of not allowin "Weekend, overtime or, holiday bumps" as, in fact, prevailing. This is not because the Board believes that the statements were untrue. Rather, it is again because the employees who prepared them merely stated that it was "the practice" and provided no details s to o they specifically applied the displacement Rule with respect to weekend bump. What is particularly interesting about each such statement is the common assertion that, during their training, they were "taught" to disallow displacement requests such s that made y the Claimant. None of the Manpower Planners gave details s to ho they actually applied that Rule in practice, although e rcnize that three of the statements claimed such a practice 'n their office without going beyond that with secic applications in given factual situations.


In order to have potentially prevailed i its defense, r at let, t have ccomlishe a shift of the burden back to the Organization, ioul have been necessary for the Carrier the submitted convincing evidence not as to the training, but as to the practice of these Manpower Planners n the property. Alternatively, a statement fro a Carrier employee ho supposedly had the authori to promulgate such a Rule interpretation might have been helpful to ascertainin the truth regardin "racice," but only if plied in the field.


      Second, in the same vein, a find that one of the detailestatements

    itte the active an retired E-represented employees, most w

ossesse substantial seniority in the Maintenance f ay Department t the time of this dispute (Or their retirement) ere materially refuted the Carrier. n their totality, these statements clearly establish that, over the course of any years, the authors of the statements had either actually made such displacements themselves or were affected by them, thereby causing a loss of overti a on unassigne days. Those statements give the historical application of ides 2, and 2, which is the very definition a past practice, emphasize.


Third, e disagree with the Carrier's position tat J. J. aljic's statement
 should a rejecte simply because an s paid the overtime.aljic's
 statement is detailed, a supports the Organization's ctention tat e
 .Claimant's displacement as neither improper unusual. According t ljic,
 ho possesse 2years service the time f this claim, e a e Claimant
 a discuss the Claimant's plans displace i ere the weekend, an aljic
 stated, "s surprised e . unable t t weekend." lji 's
 For 1 o. 1

    g Docket . -

                                                -3-1- m7


statement vas recognition that a understood that seniori and displacement rights "trumped" any entitlement to rest day overtime set out in Rule 24.1. It is not enough f the Carrier to speculate that aljic would hve felt differently had lost the overtime opportunity, although a understand the Carrier to a saying precisely that. .

 Fourth, a disagree with the Carrier's contentio tat several of the
 statements must be rejected y the Board, given their preparation by currnt and/o
 former representatives of the Organization. We find that those statements focused
 n each writer's experience with dislaceent situations such as this, an ere
 ermane the dispute t hand. "Interest" goes to weight and, in this the
 statements are consistent with many others along those lines.

 Also, disagree tt Rule 24.1 automatically superseded Claimant's
 right to displace aljic, given the Claimant's greater seniority the lc f any
 assertion that the Claimant was not qualified to operate the regulator. f the
 Claimant's displacement a been allowed time for unassigne day overtime,
 "overa e" under Rule 2.1 would have transferre fro ljic to the Claimant,
 reason. Fro the record before us, and given the langf the Agreement
 visions quoted above, vie n that Rule .I s "subordinate" tules 2 n
 overning seniority n displacement, respectively. Said another a, ides 2 n
 determine occu a position; then Rule 24.1 comes into lay it respect
 t any allocation of overtime work, e conclude.

 For the reasons discusse above, therefore, the e Board flnds no evidence in
 this particular case that the Carrier's denial of te Claimant's displacement request
 s justified under Rule or y prevailing practice, especially in light t
 Claimant's qualifications and superior seniority. Under the factual circstances
 efore us, a rule that the Clai ant's displacement should have bee allowed. The
 Carrier's retention f junior employee ljic on the position sought by the
 Claimant resulted in the Claimant's loss f 2hurs f overtime, the recor .
 s, the instant clai shall be fully sustained as presented, we hold, including the
 full monetary reedy ruese.

                        AWARD


    Claim sustained.

Form 1

e


t t

 Award No. 37601
 Docket No. MW-36570

        -3®1-


E

      is Board, after consideration t dispute i tia above,'hereby orders


that favorable to li ut(s)b a made. The Carrier is r t
 t effective a following the postmark t i
 transmitted the i

 T
 f Third

 is 22nd day of September 2005.