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, 1.934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimant G. W. Gray has established and holds seniority in various classes within the Track Subdepartment, including Sectionman (September 22, 1996) and Truck Driver (July 5, 1999). Employee K. P. Abner has established and holds seniority as a Sectionman within the Track Subdepartment. His seniority, dating from April 28, 1998, is junior to that of the Claimant.
The facts in this matter are not in dispute. Prior to September 10, 1999, the Claimant was displaced from his position. He immediately contacted the Carrier's Manpower Office and inquired whether he could displace any junior employees. He was specially advised that there were no junior employees that he could displace. He was informed that he would likely have to comply with the requirements of Rule 9 within ten calendar days in order to retain his seniority. On September 17, 1999, the Claimant again contacted the Carrier's Manpower Office and learned that the junior employee K. P. Abner was working a temporary vacation vacancy on a Truck Driver position at Parkwater, Washington, but that the vacancy was to close that day. He again contacted the Manpower office on Tuesday, September 21, 1999 to inquire as to whether he could exercise his seniority. He was advised that he could now exercise his seniority. The Claimant was informed that he could displace junior employee Abner on the position of truck driver headquartered at Sandpoint, Idaho. The Claimant displaced junior employee Abner effective Wednesday, September 22, 1999.
'The Organization claims that this is a very straightforward case. According to the Organization, the Carrier refused to recognize the Claimant's seniority when it failed to allow him to displace junior employee Abner while Ahner was filling a temporary Truck Driver vacation vacancy on the Parkwater Section. According to the Organization, this case should be sustained because the Claimant was entitled to Form 1 Award No. 37676
perform the work executed by Ahner in a temporary Truck Driver vacancy on the Parkwater Section. The relevant rules are 19(B)(3) and 19(A).
Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. The Carrier contends that employees filling vacation relief pursuant to any portion of Rule 19(B) are not subject to displacement. According to the position statement of the Carrier, "This is to say: if the position is a vacation relief position, then it is not bumpable - period." In addition, the Carrier contends that Rule 19(A) is not applicable.
The issue in this case is relatively simple. The Claimant was displaced and the Organization claims that the Claimant was entitled to fill a vacation vacancy that was being filled by a junior employee, K. P. Abner. The Carrier denied that request, claiming that employees filling vacation vacancies are not subject to being bumped out of such vacancies. We remind the parties that the burden of proof in this matter is on the Organization.
In the instant case, we have carefully reviewed all evidence regarding whether the Organization has proven that the Claimant was entitled to fill the vacation vacancy being filled by junior employee Ahner. We cannot find that sufficient evidence has been presented to prove that the Carrier was required to place the Claimant in Ahner's temporary vacation placement position, pursuant to Rule 19(B)(3). Further, Rule 19(A) does not apply in the instant case, as it does not pertain to vacation vacancies.
Thus, we find that the Organization has not met its burden of proof and the claim is therefore denied.
L:'~hCR 1\1LM~i~'S I:I;'SLNT
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_ TUTRD DI\'1%I\'1_c_I_('_N AW,R_D 37676. DOCKET M'W--6592
Referee Dierig
Although some dispute resolution practitioners view a dissent as merely a regurgitation of a position not accepted by the T9ajority, at times it becomes necessary to object to erroneous findings. Such is the situation here wherein the A1tjority has opcn~ted in a manner where one of the cornerstones of the collective bargaining agrecmcnt is threatened. The cornerstone under attack in this instance is seniority. Hence, a Dissent is mandated.
The facts in this case were clear and straightforward. At the time this dispute arose, neither the Claimant nor junior cmploye K. Ahner held a bulletined position. In an attempt to exercise his seniority, the Claimant called the Carrier's call desk to inquire where he could place himself. The Carrier's call desk personnel informed him that there was no position to displace. Because the Claimant had ten (10) calendar days to exercise his senio7-ity before he was forced to furlough, lie again called the call desk before his ten (10) days expired. At this time he specifically asked where junior employe Ahner was working. The call desk personnel informed him that Mr. Ahner was working a position at Sandpoint, Idaho and the Claimant displaced him. That was the first time the Claimant was aware that junior cmploye Abner vas Nvorking. The dispute that was presented to the Board involved the interim period v here the Claimant was attempting to exercise his seniority and the Carrier's failure to allow him to do so.
Clearly, our position throughout the handling of this dispute was that the Claimant's superior seniority should have been honored in preference to the junior employe. As we mentioned above, this case involves seniority, one of the cornerstones of the Agreement. The Carrier put forth the position that temporary positions filled pursuant to Rule 19(13) are immune to the seniority provisions of the Agreement. Where that language appears in the Agreement remains a mystery. In any event, the Majority in this instance clearly did not read the rule, otherwise it would not have held:
It is crystal clear that the only relevance Rule 19(B) has is to a vacation vacancy. Rule 19(13), Sections (1) and (2) extend preference to such vacation vacancies to those who are working at the location where the vacancy occurs. Rule 19(B), Section (3) states: Labor Member's Dissent