Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40241
Docket No. MW-37488
09-3-02-3-566
The Third Division consisted of the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(CSX Transportation, Inc.
PARTIES TO DISPUTE:
(Brotherhood of Maintenance of Way Employes
STATEMENT OF CLAIM:
"A claim on behalf of L. S. Cromer ID 187355 and Keith McDivitt
ID 188368 because the Carrier violated the June 1, 1999 Agreement
between CSX Transportation, Inc. and its Maintenance of Way
Employees when the above Claimants were forced to occupy the
same motel room.
Beginning in September 2001 Supervisor Blaydes instructed Mr.
Cromer and Mr. McDivitt to occupy the same motel room. Mr.
Cromer is assigned to a one man gang, 4X47 and Mr. McDivitt is
assigned to a one man gang, 6NP6. Mr. Cromer is assisting gang
6K74 at Clinton, IN. [System File 160704501]
As a consequence of the violation, please advise when Mr. Cromer
and Mr. McDivitt will place in single occupancy."
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. 40241
Page 2 Docket No. MW-37488
09-3-02-3-566
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 present case under two separate but similar Submissions has been
brought to the Board nearly simultaneously not only by the Carrier, but also by the
Organization. The present case was advanced to the Board by the Carrier and the
case advanced by the Organization is listed under Docket MW-37679. Submissions
by the Parties in each docket are essentially identical. As one would expect, the
Carrier, in its Submission of the instant case, adopted the Organization's wording of
the original claim.
This circumstance has already been addressed by the Board in Third Division
Award 31388 decided by Referee Marx. In that Award, the Board found that, when
faced with identical Submissions for two dockets, "the Board need rule on only one
of the completed files." Irrespective of which Party files initially with the Board the
burden of persuasion in any dispute remains the same. In this case the burden is
with the Organization.
The Board is in agreement with Award 31388, to wit: because the burden of
persuasion is on the Organization "it is more reasonable to review the matter based
on the Organization's initiative." (See also Third Division Awards 31326 and
31327). In the case of Award 31388, the Submissions were docketed for hearing
simultaneously. In this case, however, for reasons not clear on the record, the
Docket initiated by the Organization was scheduled for a later date.
Under that circumstance, the Board finds that the process is most logically
served by dismissing the instant case without prejudice and addressing the matter in
Docket MW-37679 to avoid duplication of the Board's efforts.
AWARD
Claim dismissed.
Form I Award No. 40241
Page 3 Docket No. MW-37488
09-3-02-3-566
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 ADJUSTNWNT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 21st day of December 2009.