As a consequence of the violation referred to in Part (1) above, Claimant L. Martellaro shall now be compensated for nine and
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.
This is a rest day overtime dispute involving the Carrier's use of a junior Extra Gang Foreman to perform general track inspection work on Saturday and Sunday, September 22 and 23, 2007. It raises the issue of whether the Claimant's seniority within the classification gives him preference to this rest day overtime assignment, and relies upon Rule 26(h) which provides, in pertinent part:
The Claimant and the junior employee assigned to the disputed work are both classified as Foremen with a Monday through Friday workweek. At the relevant time, the Claimant was working as a Foreman on a surface and lining gang with responsibilities consisting of the tamper and regulator far that gang. According to the statement of the Manager of Track Maintenance, the junior Form 1 Award No. 40893
employee was working as an Extra Foreman to cover extra jobs and relieve other Foremen and Track Inspectors when they were not available, and on the claim dates, he was relieving the regular Track Inspector as part of his normal job responsibilities. There was no need for a surfacing gang during the disputed overtime assignment.
The Organization argues that this was pre-planned overtime at the location where both the Claimant and the junior employee were assigned, and that it involved functions - general track inspection - that are typically performed in connection with whatever assignment a Foreman has. It notes that because both employees were qualified and available for the overtime at issue, and the junior employee was not the regularly assigned employee to perform this work because there had been no Relief Foreman position bulletined, the Claimant had a seniority preference for this assignment, citing Third Division Awards 4531 and 36264. The Organization contends that the Board upheld the paramount importance of seniority for overtime assignments in similar circumstances, relying on Third Division Awards 19758, 20310, 24480, 27593, 33909, 35572 and 37205; Public Law Board No. 6430, Award 9.
The Carrier contends that this was part of the regular assignment of the junior employee, who relieves the Track Inspector, pointing out that this fact was not refuted by the Organization. It asserts that under Rule 26(h) the regular employee is given preference to the overtime, noting that the Rule says nothing about seniority, citing Third Division Awards 31294 and 37052. The Carrier argues that the Organization failed to meet its burden of proving a violation, relying on Third Division Awards 23357, 37857 and 39300.
After careful review of the record, the Board is of the opinion that the Organization failed to carry its burden of proof in this case. There is no doubt that, in the absence of the availability of the regular employee, when two or more employees are equally qualified and available for a planned rest day overtime assignment, seniority is a factor that should be considered in making the assignment. See Third Division Awards 27593 and 37205. The basis of the Organization's claim is that the junior employee was not the regular employee contemplated in Rule 26(h) because he does not hold a bulletined Relief Foreman position. However, the Organization did not present any evidence to rebut the Form 1 Page 4
