Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37806
Docket No. CL-38121
06-3-03-3-508
The Third Division consisted of the regular members and in addition Referee
Martin H. Malin when award was rendered.
(Transportation Communication International Union
PARTIES TO DISPUTE: (
(National Railroad Passenger Corporation (Amtrak)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Organization (GL-12003)
that:
The Carrier violated the Amtrak-Northeast Corridor Clerks Rules
Agreement on Monday, June 17, 2002, when it called and worked
junior employee S. Martin-Jordon for position of Ticket Seller,
hours 9 a.m. to 7 p.m. at Newark Penn Station a position that does
not have.
An established agreement between the Organization and the Carrier
in establishing Ten Hour Work days, at this work location.
In calling junior extra employee, EX-301 for a position that does not
exist, the Carrier failed to call and work Claimant April Paul for the
position at the punitive rate of pay, who is senior, was on her rest
day, and is qualified to perform the work.
Claimant Paul now be allowed eight (8) hours at the punitive rate of
pay on account of this violation.
The Carrier is in violation of Rule/s and Appendixes: Rule 4-A-4
(Work on Rest Days), Rule 2-A-1 (Bulletining and Awarding),
Appendix E- Articles 3b, 1-1/b, 2a/b, 5a, 6a. Appendix H-Article IVparagraph(d), Rule 5-C-1 (Extra Boards) and other rules.
Form 1 Award No. 37806
Page 2 Docket No. CI-38121
06-3-03-3-508
The Carrier and the Organization have no written agreement
establishing Ten-Hour Workdays to be based out of Newark Penn
Station. The only two ticket seller positions established that the
Carrier and the Organization have made provisions and agreed to
have ten hour days and be based at the Airport location the (Port
Authority).
There are no regularly assigned positions at Newark Penn Station
(the) location of the violation. When the Carrier assigned S. MartinJordan for a position of ten hour days the Carrier was in violation of
the call period for the Extra List which is 5 a.m. to 7 p.m., 1 p.m. to 3
p.m. and 9 p.m. to 11 p.m. The Extra List does not have regularly
assigned work and days off. When Carrier assigned S. MartinJordon to the position the Carrier also assigned her for the next day,
Tuesday same shift then assigned her three days off (Wed., Thurs.
And Fri.). In accordance with Article E, Article 12 - paragraph (t)
the work week for the Extra Board begins on Mondays at 12:01 and
allows the Extra Board to have seven days within a week to make his
or her 40 hour guarantee. If within that seven day the employee has
not worked the prescribed 40 hours - provisions of the Extra
agreement allow for the employee to have those hours made up to
match is/her guarantee.
In assigning rest days, in advance and working the ten hour work
day the Carrier is trying to open the door for regular assigned
positions to be eventually abolished (Appendix E - Article 13) and
avoiding the establishment of new positions to be bulletined (Rule 2A-1).
Claimant April Paul was on her rest day, is qualified to perform the
work, and would have accepted and received eight (8) hours at the
punitive rate of pay for work performed. The Carrier failed to offer
a first/second call to claimant. The Claimant's representative
requested from the Carrier the call out sheets for overtime. The
Carrier's Manager Kato provided to Claimant's local representative
Form 1 Award No. 37806
Page 3 Docket No. C1-38121
06-3-03-3-508
and on a conference with Vice General Oathout of TCU that no such
call sheets existed and that the Organization should file a claim for
all of the dates. S. Martin-Jordon would be working the whole week
because she was not going to change her mind in order for
unnecessary claims/grievances to be filed.
This claim has been filed in accordance with Rule 7-B-1 of the NEC
Agreement and in accordance with the Off-Corridor Clerks Rules
Agreement, Rule 25, and should be allowed and accepted as
presented."
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.
The instant claim alleges that on June 17, 2002, the Carrier worked a
Guaranteed Extra Board employee for ten hours at Newark - Penn Station in
violation of the Agreement which provides that the regular workweek consists of
five eight hour days. The Organization maintains that the Carrier may only require
employees to work ten hour days at Newark Airport where the parties have a
Special Agreement to that effect. The Carrier responds that it has the right under
the Agreement to work an Extra Board employee for ten hours where necessary to
meet the employee's 40 hour weekly guarantee.
Form 1 Award No. 37806
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We need not determine which party's interpretation of the Agreement is
accurate. The record reveals that there is a disputed issue of fact. During handling
on the property, the Organization based its position that the Extra Board employee
worked ten hours on the date in question on the work schedule. The Carrier,
pointing to the History of Paid Labor, maintained that the Extra Board employee
worked only eight hours on the date in question. Notably absent was any statement
from the employee attesting to the hours that she actually worked.
As an appellate body, we are unable to resolve such disputed issues of fact.
The Organization bears the burden of proof on the question of how many hours the
Extra Board employee worked. On the record presented, the claim must fail for
lack of proof.
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 21st day of June 2006.