"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Kansas City Southern Railway (KCS):

Claim on behalf of F. D. West, for four hours pay at the applicable overtime rate of pay plus Skill pay, due to the loss of work opportunity, and for seniority rights, account Carrier violated the current Signalmen's Agreement, particularly the Scope Rule, Rule 2, Rule 10, Rule 12 and Rule 30, when on June 11, 2004, the Carrier wrongfully called a MidSouth Rail (MSR) Traveling Signal Maintainer to repair a tracklight between Red Junction M.P. L-561.2 and Wilson Alley M.P. L-559.5 on the Shreveport Terminal Subdivision on the Kansas City Southern Railroad. Carrier's File No. K0604-5905. General Chairman's File No. 04-083-KCS-185. BRS File Case No. 13157-KCS."

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

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

On June 11, 2004, Signal Maintainer Mitchell was unavailable for a trouble call concerning a signal malfunction within the limits of the Shreveport, Louisiana, terminal. Mitchell's designated mark off partner also was unavailable for the trouble call. Instead of calling the Claimant, C. L. Rose, a KCS Signal Maintainer who successfully bid a former MidSouth Signal Maintainer assignment headquartered at Minden, Louisiana, received the trouble call and repaired a flasher crossing in approximately four hours. Rose, who holds seniority on both the KCS and MSR, has frequently worked as Mitchell's de facto mark off partner in the past. Mitchell had instructed the call desk to call Rose if his designated mark off partner was unavailable.

The Organization seeks four hours of compensation at the applicable overtime rate for the Claimant, who it maintains should have been called to repair the flasher crossing. The Organization contends that there is no provision in either the KCS or MSR Agreement that would permit MSR signal employees to perform work covered by the KCS Agreement without an agreement of the parties to do so. The Organization claims that Rose is governed exclusively by the MSR Agreement and, therefore, is not eligible for work covered by the KCS Agreement. The Organization cites Rules covering overtime, calls (availability, coverage, and pay) and seniority and asserts that there is no provision in either the MSR or KCS Agreements permitting MSR signal employees to perform KCS work without an agreement to do so.

The Carrier asserts that the Organization failed to meet its burden of proof because none of the Rules it cites specifically address the order, priority, or rights to a trouble call for work on another Signal Maintainer's territory. The Carrier contends that Signal Maintainer Rose was called at Mitchell's behest and it cannot now be held liable for the actions of an employee.

The Carrier further relied on an October 26, 1999 Memorandum of Agreement governing the rights of employees of the KCS "including the former MidSouth (MS)." That Memorandum of Agreement provides that employees "accepting employment on the other railroad will establish a new seniority date" but will also "retain their original seniority date" and will continue to accrue seniority "on their original territory." Accordingly, Rose, though working on the MSR, retained and continued to accrue seniority on the KCS and thus retained his eligibility to respond to a call on the KCS. Additionally, at the time of the call, a long-standing de facto arrangement between Mitchell and Rose where Rose worked as Mitchell's de facto mark off partner when his designated mark off partner was unavailable, led the call desk to contact Rose for the disputed work. Although the Claimant may have a claim to the work, the employee called also held seniority on the KCS and also maintained a right to the work. There is no proof or Agreement language to establish that the Claimant was senior to the employee used or otherwise had a preferential right to the work. Under these circumstances, the claim is denied.

Claim denied.

ORDER