Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40394
Docket No. MW-40577
10-3-NRAB-00003-080398
The Third Division consisted of the regular members and in addition Referee
Sherwood Malamud when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company (former Southern
( Pacific Transportation Company [Western Lines])
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier refused to allow
Mr. H. Ramone to begin work on August 8, 2006 and
advised
him before the start of that work day that he was to go home
and that an unauthorized absence (UA) would be placed on his
record (Carrier's File 1462246 SPW).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant H. Ramone shall `. . . now be compensated for ten
(10) hours net wage loss, straight time and overtime, and Per
Diem, including any and all benefit losses suffered by him on
August 8, 2006. We would also ask that the unauthorized
absence (UA), be removed from his record."'
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 40394
Page 2 Docket No. MW-40577
10-3-NRAB-00003-080398
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.
The Organization asserts that on August 8, 2006, Claimant H. Ramone
presented himself at 4:45 A.M. for a 5:00 A.M. start at the designated assembly
point for System Gang 8500 in Tucson, Arizona. The Carrier defends by asserting
that the Claimant was late for work and, as a consequence, Foreman, T. Vega sent
him home.
The record developed on the property contains no statement from the
Claimant as to when he reported for work. The record contains statements from
Supervisors who were not on site at the time, but who assert that the Claimant was
late for work that day.
The Organization bears the burden of proof in cases such as this. The
parties disagree on the central fact in this case, i.e., whether the Claimant reported
on time or was late for work. There is no evidence in the record to support the
Organization's assertion that the Claimant timely reported for work on August 8.
Due to a failure to prove the central fact in this case and the conflict between
the parties over this central fact, both serve as a basis for the Board to deny the
claim. The Board has held that as an appellate body it has no way of resolving
evidentiary conflicts. See Third Division Awards 36566 and 37659. In Public Law
Board No. 2960, Award 154, Referee Gil Vernon held:
"We essentially have two parties making assertions. But the burden
is on the Organization to establish the necessary fact. It has not
done so." (Award 36566)
Form 1 Award No. 40394
Page 3 Docket No. MW-40577
10-3-NRAB-00003-080398
Further, in Third Division Award 27226 the Board acknowledged the
Carrier's discretion to refuse to permit a tardy employee to work. Rather, the
Carrier may send the employee home; such does not constitute discipline.
Accordingly, without the ability to resolve the factual dispute over whether the
Claimant timely reported for work, the Board will not disturb the Carrier's decision
to place an unauthorized absence in the
Clot's
personnel record.
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 25th day of March 2010.