Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38194
Docket No. MW-38882
07-3-05-3-318
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed to allow
Plumber S. Holmes to displace junior employe A. Mack on
Gang 1-052 on May 3, 2004 (System File NEC-BMWE-SD-4440
AMT).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant S. Holmes shall now `. . . be allowed to bump the
Plumbers position; be paid the difference in rate between the
position, and also for any overtime missed by Mr. Holmes as a
Plumber, until this issue is resolved."'
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. 38194
Page 2 Docket No. MW-38882
07-3-05-3-318
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
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were given due notice of hearing thereon.
According to the Carrier, on April 27, 2004, B&B Plumber A. Mack was
directed to return to duty in the B&B Department from furlough. As a result of
that direction, on May 3, 2004, Mack was assigned to a new Plumber's position on
B&B Gang I-052. According to the Organization, Mack was not on furlough, but
was holding a Trackman's position and was given instruction by the Carrier to fill a
Plumber's Dosition. The Carrier resnonded that Mack did not have
ennn¢h
seniority as a Plumber to hold a Plumber's position after his Plumber's position was
previously abolished and, although holding a Trackman's position in the Track
Department immediately prior to assuming the Plumber's position on May 3, 2004
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On May 3, 2004, B&B Mechanic J. Szczvroski returned from a leave of
absence and bumped the Claimant from his B&B position on Gang I-363. The
Claimant, who was senior to Mack, immediately attempted to bump Mack from his
position as a Plumber on B&B Gang 1-052. The Carrier did not permit Claimant to
bump Mack and this claim followed.
Rule 21 provides:
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New positions filled by recalled employees will be advertised on the
first Monday after five days from the date such employees start
work on such positions. Such advertisements will be made in
accordance with the procedure in Rule 3.
If such positions are not advertised on the first Monday thereafter,
then employees in active service may exercise seniority to displace
For.== 1 Award No. 38194
Page 3 Docket No. MW-38882
07-3-05-3-318
newly recalled employees, provided they notify their current
supervisory officer or foreman not less than 24 hours in advance of
their current starting time."
Whether Mack was working as a Trackman or simply not working,
immediately privy t0 iviay 3, 2004, viack was rtu On furlough from the
B&B Department. Mack was recalled to the B&B Department effective that date t0
a new Plumber's position in the B&B Department. Under Rule 21, the Carrier was
not obligated to advertise that position until ". . . the first Monday after five days
from the date such employees start work on such positions." And, if not advertised
after five days, it was at that time under Rule 21 that ". . . employees in active
service may exercise seniority to displace newly recalled employees ...."
Because of Rule 21, the Organization has not shown that the Claimant had
the right to exercise his greater seniority to displace junior Plumber Mack on the
day that Mack started the new position in the B&B Department after Mack was
recalled from furlough t0 the
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facts and under the language in Rule 21, the Claimant's right to bump Mack did not
exist until May 10, 2004, assuming that the Carrier did not advertise the position by
that date.
With respect to the Organization's argument that Mack was not recalled to a
"new" Plumber's position, thereby rendering Rule 21 inapplicable, at best, the facts
are in dispute as to whether that position was "new." The burden is on the
Organization to prove from the correspondence on the property that the position
was not new. That burden has not been met sufficient to rebut the Carrier's
assertion that the Plumber's position Mack assumed on May 3, 2004 was "new" and
thU.s prrotPCted under Rule 21,
Based on the above, the Organization has not carried its burden. The claim
will therefore be denied. In light of that finding, the Carrier's procedural argument
need not be addressed.
Form 1 Award No. 38194
Page 4 Docket No. MW-38882
07-3-05-3-318
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, herebv orders
that an Award favorable to the Claimant(s) not be made.
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By Order of Third Division
Dated at Chicago, Minois, this 18th day of May 2007.