Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40925
Docket No. MW-41074
11-3-NRAB-00003-090382
The Third Division consisted of the regular members and in addition Referee
William R. Miller when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( HIT Rail Conference
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned junior
Extra Gang Foreman F. Casados to perform rest day overtime
service of inspecting track from Mile Post 0.0 (Prospect-Fox
Junction) westward to Rocky Siding, Mile Post 17.3 on January
12, 2008 instead of senior Extra Gang Foreman L. Martellaro
(System File D-08-06/1500996).
(2) The Agreement was violated when the Carrier assigned junior
Extra Gang Foreman F. Casados to perform rest day overtime
service of inspecting track from Mile Post 5.0 South to Mile
Post 5.0 West, Mile Post 0.0 to Mile Post 4.0 on the Belt Main
Line and Mile Post 4.9 to Mile Post 1.0 Main Lines I and 2 on
February 16, 2008 instead of senior Extra Gang Foreman L.
Martellaro (System File D-08-10/1500997).
(3) The Agreement was violated when the Carrier assigned junior
Extra Gang Foreman F. Casados to perform holiday overtime
service of inspecting track from Mile Post 3.0 to Mile Post 17.5
West on February 18, 2008 instead of senior Extra Gang
Foreman L. Martellaro (System File D-08-11/1500998).
Form I Award No. 40925
Page 2 Docket No. MW-41074
11-3-NRAB-00003-090382
(4) As a consequence of the violation referred to in Part (1) above,
Claimant L. Martellaro shall now be compensated for six (6)
hours at his respective time and one-half rate of pay.
(5) As a consequence of the violation referred to in Part (2) above,
Claimant L. Martellaro shall now be compensated for nine and
one-half (9.5) hours at his respective time and one-half rate of
pay.
(6) As a consequence of the violation referred to in Part (3) above,
Claimant L. Martellaro shall now be compensated for five (5)
hours of overtime at his respective time and one-half rate of
pay-11
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.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
This case concerns three individual claims involving the same Claimant,
handled separately by the parties on the property, but combined for the Board's
resolution. The Organization has alleged that the Carrier improperly used a junior
Foreman to work overtime inspecting tracks instead of using the Claimant who was
senior, available and qualified for the work. The only distinguishing difference in
the claims, are location, dates, and times.
Form I Award No. 40925
Page 3 Docket No. MW-41074
11-3-NRAB-00003-090382
The Organization asserted that the claimed overtime and double time work is
not incidental to either employee's regular assignment; therefore, the work should
have been assigned to the senior employee. The Carrier stated that the work was
covered by Rule 26(h) WORK ON UNASSIGNED DAYS, and in accordance with
that Rule the overtime is first offered to an employee who regularly does the work,
rather than by seniority.
The undisputed facts indicate that the Claimant was assigned as an Extra
Gang Foreman on Gang 5675, which was a Surface and Lining Gang that included
other employees whereas the junior employee F. Casados was an Extra Gang
Foreman on Gang 5354 with no other employees, who was responsible to cover extra
jobs and relieve other Foremen.
Rule 26(h) states:
"WORK ON UNASSIGNED DAYS - Where work is required by the
Company to be performed on a day which is not a part of any
assignment, it may be performed by an available extra or
unassigned employee who will otherwise not have forty (40) hours of
work that week; in all other cases by the re, ug_ lar employee."
(Emphasis added)
Review of the correspondence on the property indicates that the Claimant
was asserting seniority preference to the disputed overtime on the basis that neither
he nor the junior employee regularly performed work of inspecting tracks. If
neither individual regularly did the work in question, nor were both qualified, the
Claimant's argument would be valid. However, in this instance the Manager of
Track Maintenance stated the duties performed by Casados were in connection with
his regular assignment because he was relieving the regular Track Inspector as part
of his normal job responsibilities, which included the inspection of track. That
statement was not effectively refuted on the property with any first hand evidence to
the contrary. The Organization failed to make a prima facie case that neither
employee regularly performed the disputed work during the workweek, whereas the
Carrier demonstrated persuasively that the junior employee did perform such work
during the week. The Board finds and holds that the claim is denied.
Form 1 Award No. 40925
Page 4 Docket No. MW-41074
11-3-NRAB-00003-090382
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.
TIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 24th day of March 2011.
