Award No. 40433 Docket No. MW-40032

10-3-NRAB-00003-070230 (07-3-230)

The Third Division consisted of the regular members and in addition Referee Ann S. Kenis when award was rendered.

STATEMENT OF CLAIM:

(1) The Agreement was violated when the Carrier called and assigned junior employe J. Ochoa to perform snow removal service at Bensenville, Illinois on January 21, 22, 23 and 24, 2005 instead of calling and assigning Mr. A. Cardenas (System File C05-05-C060-0318-00219-128 CMP).

(2) As a consequence of the violation referred to in Part (1) above, Claimant A. Cardenas shall be compensated a total of one thousand one hundred six dollars and sixty-four cents ($1,106.64) for the straight time and overtime hours worked by junior employe J. Ochoa on January 21, 22, 23 and 24, 2005."'

The

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 the claim dates in question, J. Ochoa was recalled from furlough to fill a Laborer's position added to assist the regularly assigned crew in performing snow removal work. The Claimant, who was also on furlough, possessed greater seniority than Ochoa. The Organization filed the instant claim, contending that the Carrier should have called the Claimant to perform the work.

The Carrier contended that there was no violation of the Agreement. Its denial of the claim was based on an asserted snow emergency. The Carrier argued that snow emergency service may be performed without regard to seniority.

The Carrier's argument was in the nature of an affirmative defense for which it bore the burden of proof. On this record, we find absent the probative evidence necessary to support the Carrier's claimed affirmative defense. On the contrary, the documentary evidence provided by the Organization indicates that approximately eight inches of snowfall had been predicated over a period of several days. The weather conditions on the claim dates were not unusual for the Chicago area in the winter season.

In addition, we

question. By letter dated January 10, 2005, he had informed his Supervisor of his continued interest in performing any available work opportunities, particularly within the Bensenville, Illinois, area.

Under these circumstances, we find that the claim has merit. The Carrier failed to establish the existence of an emergency situation that would have allowed it to assign the disputed work to a junior employee. The Carrier knew in advance that additional employees would be needed for the snow removal work. The Claimant had the requisite seniority and he was qualified and available to perform the work at issue in this case. The Organization has shown that the claim has merit and it is sustained in its entirety.

Claim sustained.