Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40318
Docket No. MW-39982
10-3-NRAB-00003-070189
(07-3-189)
The Third Division consisted of the regular members and in addition Referee
Ann S. Kenis when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated Agreement when it failed to call and assign
Mr. S. Robinson to fill a short vacancy, an Engineering Services
Equipment and Machine Sub-department Group 4A (tractor)
position, at Glenwood, Minnesota on December 20 and 21, 2004
and instead assigned junior employee M. Smith (System File C05-160-00318-00228-113 SOO).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant S. Robinson shall now be compensated for sixteen (16)
`. . . hours at the Group 4 Rank A Machine Operator rate of pay
$18.13 per hour and have all overtime, vacation, fringe benefits,
and other rights restored which were lost to him as a result of the
above violation."'
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. 40318
Page 2 Docket No. MW-39982
10-3-NRAB-00103-070189
(07-3-189)
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 Claimant was on furlough during the latter part of the 2004 work season.
He has a Machine Operator seniority date of May 1, 1997. Furloughed employees
are entitled to place their names on appropriate "call lists" to be considered for
recall to short term vacancies pursuant to Rule 14.
This claim contends that the Claimant faxed a call list request to the Carrier
on November 1, 2004. The Claimant's handwritten statement attached to the call
list request identifies the fax number of the Carrier as the recipient. It further
states that a call was placed to confirm that the fax had been received and that
"Gigi" said it was received. "Gigi" is CP Staffing Services Representative Gigi
Sutherlin, the person designated to receive such information.
On December 20 and 21, 2004, a temporary vacancy occurred on the
Glenwood tractor position, a Group 4 Rank A position. An employee junior to the
Claimant was contacted to fill the temporary vacancy. The Carrier asserts that the
Claimant was not contacted because he was not on the Machine Operator call list
and no request for placement on the list had been received by the Carrier. The
Carrier asserted during claim handling that Sutherlin had confirmed no receipt of
such request from the Claimant, but it did not offer any statement to support its
assertion.
In a similar evidentiary dispute regarding the facts underpinning an
employee's disqualification, the Board in Third Division Award 32712 stated:
"At all levels of handling on the property, the responding Carrier
officials asserted that the Claimant maintained that he was unable to
operate the speed swing due to his medical condition. However, the
Carrier presented no evidence from individuals with personal
knowledge, such as the Foreman or the Roadmaster, in support of
this assertion. Had the Carrier done so, the result we reach may
have been different. However, as the record now stands, the only
evidence is the Claimant's unrefuted signed statement that he voiced
Form 1 Award No. 40318
Page 3 Docket No. MW-39982
10-3-NRAB-OW3-070189
(07-3-189)
no complaints about operating the speed swing. The assertions of
Carrier's officials to the contrary, unsupported by probative
evidence, cannot create a conflict in the facts. See Third Division
Awards 21224, 21222, 18870. Based on the record developed on the
property, the claim must be sustained:' (Emphasis added)
The Organization presented uncontroverted evidence that the Claimant faxed
the call list to the appropriate Carrier individual. Although the Carrier doubts the
sufficiency of that evidence, its reliance on unsupported assertions are not sufficient
to rebut the Organization's prima facie case. This claim must be sustained.
AWARD
Claim sustained.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimants) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 1st day of March 2010.