Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40417
Docket No. MW-39950
10-3-NRAB-00003-070084
(07-3-84)
The Third Division consisted of the regular members and in addition Referee
Brian Clauss 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 Carrier violated the Agreement when it assigned Deming
Subdivision and junior employes P. Villegas and J. Lopez to
overtime service at Mile Post 1156 on the Lordsburg Subdivision on
November 21 and 22, 2005 instead of Lordsburg Subdivision
employe H. Moreno (Carrier's File 1442468 SPW).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant H. Moreno shall now be paid for eleven (11) hours at his
overtime rate of pay and for sixteen (16) hours at his double time
rate of pay."
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
Page 2
herein.
Award No. 40417
Docket No. MW-39950
10-3-NRAB-00003-070084
(07-3-84)
This Division of the Adjustment Board has jurisdiction over the dispute involved
Parties to said dispute were given due notice of hearing thereon.
The Claimant, was assigned and working as a Laborer Gang
7368,
has seniority
dating to March
24, 1971.
The instant claim involves overtime work that occurred on
November
21
and
22, 2005.
The Organization maintains that the Carrier violated the Agreement when it
assigned two junior employees to perform overtime work. According to the January
13, 2006
correspondence of the General Chairman, the two junior employees were:
".
. . to stand by for possible broken rails at Mile Post
1156,
on the
Lordsburg Subdivision. Not only are the two employees junior in
seniority to the Claimant, but they are assigned to Gang
8610
headquartered at Deming, NM on the Deming Subdivision. These two
employees had to cross over seniority district lines in order to perform
this work. This was not an emergency situation."
According to the Organization, not only were the two employees junior to the
Claimant, but the seniority district lines were violated when they were assigned the
overtime work.
The Carrier counters that the two employees were working on a ballast
regulator and a truck - work for which they were qualified and the Claimant was not.
Further, the employees did not "stand by for a broken rail." Rather, the employees
were working on a bridge that had been destroyed in a fire. According to the Carrier,
the Claimant was not qualified for the work and the two employees were not assigned
as the Organization now claims. The Carrier further contends that the matter presents
an irreconcilable conflict in material fact and must therefore be dismissed.
Board carefully examined the record evidence. The Carrier produced
documentation that the two junior employees were assigned to a Casualty Work Order
at MP
1156
for the repair of
75
feet of timber bridge. Further, they were listed as
working as a Ballast Regulator Operator and a Truck Driver - for neither of which the
Claimant was qualified.
Form 1
Page 3
Award No. 40417
Docket No. MW-39950
10-3-NRAB-00003-070084
(07-3-84)
In his letter dated March 30, 2006, the General Chairman stated, in pertinent
"Despite what [MTM] may have informed Ms. Allen, it is easy to claim
that [the junior employees] worked as a ballast regulator job and a
truck driver job on paper, but out in the field it's a different story.
Although [the junior employees] show being paid at their respected
class of time, it does not diminish or prove that they actually worked in
that capacity. Being paid .
worked exclusively in those positions."
In the final analysis, despite the General Chairman's contentions, allegation is
not evidence and conjecture is not proof. The burden here is on the Organization to
establish a prima facie violation of the Agreement. The Carrier provided documentary
evidence that the two junior employees were assigned to the bridge repair on jobs for
which the Claimant was not qualified. The Organization has not refuted the Carrier's
evidence. Accordingly, the Organization's claim must fail for lack of proof.
part:
. does not automatically mean that they
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 14th day of May 2010.