Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38091
Docket No. MW-37264
07-3-02-3-272
The Third Division consisted of the regular members and in addition Referee
Gerald E. Wallin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Chicago &
( North Western Transportation Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned Seniority
District 3 employes D. W. Crowe, T. L. Felder and M. C.
Herring to perform work (remove snow) on Seniority District 9
territory at Mile Post .20 on the Milwaukee Subdivision on
December 16, 2000 through December 21, 2000 instead of
furloughed Seniority District 9 employes C. J. Spencer, M. V.
Hidalgo and E. L. Davis (System File 9KB-6697711263959
CNW).
(2) As a consequence of the violation referred to in Part (1) above,
Claimants C. J. Spencer, M. V. Hidalgo and E. L. Davis shall
now be compensated for an equal and proportionate share of
the seven (7) hours straight time and two hundred four (204)
hours overtime service rendered by District 3 employes D. W
Crowe, T. L. Felder and M. C. Herring in the performance of
the aforesaid work on District 9."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 38091
Page 2 Docket No. MW-37264
07-3-02-3-272
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.
It is undisputed that the Claimants were on furlough status in Seniority
District 9 on the dates of the claim when record snowfall struck the region. The fact
of the heavy snowfall is documented in the record and agreed to by the
Organization. It is further undisputed that three employees holding seniority in
District 3 were allowed to work in the Claimants' seniority district during the claim
period clearing and/or removing snow while the Claimants did not participate in the
recovery efforts.
Notwithstanding the foregoing facts, a statement in the record from a Carrier
official asserted that one of the Claimants was personally offered the opportunity to
perform the snow fighting work and the other two Claimants were called at their
phone numbers of record with a similar work offer. Moreover, according to the
statement, work was available for anyone who wanted it and the Carrier took
various steps to disseminate this information as widely as possible under the
circumstances. While the Organization alleged certain deficiencies in the contents
of the statement, the record contains no first-hand evidence whatsoever in
opposition to it. Significantly, there were no statements from any of the three
Claimants to challenge the assertions contained in the statement.
Given the foregoing circumstances, we must find that the Organization failed
to satisfy its burden of proof to establish a violation of the Agreement as alleged in
the claim.
Form 1 Award No. 38091
Page 3 Docket No. MW-37264
07-3-02-3-272
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 February 2007.