Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40963
Docket No. MW-40851
11-3-NRAB-00003-090145
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 -
( HIT Rail Conference
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company (former Missouri
( Pacific Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and
refused to assign Machine Operator C. Loch to overtime
service to unload Gang 9101 machines and equipment at
Houston, Texas, on October 31, 2007 and instead assigned
junior employe J. Perales (System File T07-3011489708 MPR).
As a consequence of the violation referred to in Part (1) above,
Claimant C. Loch shall now be compensated for twelve (12)
hours at his respective time and one-half 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 Award No. 40963
Page 2 Docket No. MW-40851
11-3-NRAB-00003-090145
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 Claimant holds seniority in the Roadway Machine Operator
classification from March 18, 1993. When this dispute arose on October 31, 2007,
and since 2000, the Claimant was assigned to System Rail Gang 9101. This Gang is
a large mechanized mobile and high production gang that operates over a large
geographic area.
Under a T-1 schedule, October 31 was a scheduled rest day. The Carrier
scheduled 31 employees to work non-emergency overtime to unload Gang 9101's
equipment on October 31. The Carrier scheduled J. Perales, who holds less
seniority in the Roadway Machine Operator classification than the Claimant, for the
overtime. The Claimant alerted his supervisor W. E. Loggins that he was available
and wanted to work this overtime.
The Carrier explained the decision to schedule Perales rather than the
Claimant in a statement provided by Manager of Track Programs Menchacha
during the on-property processing of this claim:
"With regard to Mr. Loch's claim, it is important to understand the
mechanics involved with unloading a train. An off-track crane is
used to accomplish the actual unloading of materials from the train.
A particular group of individuals dedicated to the task of unloading
trains and these particular individuals are `qualified' to unload
trains. When machinery is unloaded from the train, there is
oftentimes a need to move that machinery from the point at which it
was unloaded. Only a person qualified on that particular piece of
machinery may move it. The only machine that Mr. Loch is
qualified on is the 'Fairmont Spike Puller.' Mr. Loch is not an
individual normally tasked with unloading trains. Additionally,
there wasn't a 'Fairmont Spike Puller' that required to be unloaded
and moved on the date in question. This is why Mr. Loch was
deemed unqualified to unload the train on this date."
Form I Award No. 40963
Page 3 Docket No. MW-40851
11-3-NRAB-00003-090145
Once the Carrier challenges the Claimant's qualifications to perform the
work scheduled for October 31, the burden shifted to the Organization to establish
that the Claimant was qualified to perform the scheduled work. See Third Division
Award 36902 wherein the Board stated:
"In line with consistent determinations made over many years, the
Board finds that once the Carrier stated that the Claimant lacked
the fitness and ability for the position, the burden of proof shifted to
the Organization to demonstrate by sufficient probative evidence
that the Carrier's actions were in error."
The Organization asserted that the Claimant was qualified, but it presented
no evidence that the Claimant was qualified to operate equipment other than the
Fairmont Spike Puller. The Organization presented no evidence to establish either
that the Fairmont Spike Puller was unloaded on October 31, or that the Claimant
was qualified to operate any of the pieces of equipment unloaded on October 31.
The Board concludes that the Organization failed to meet its burden of proof.
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 April 2011.