As background, certain facts are clear and undisputed. The Carrier had considerable trouble filling Assistant Foreman and Assistant Foreman-Relief positions on the Trouble Desk at the Boston South Station CETC. Although the Carrier continued to advertise, it received no qualified bids for the third trick assignments.
The Carrier ultimately created Signalman positions at the Boston CETC Center giving rise to the instant claim. In this case, Signalman J. Alves was awarded and worked one of those positions.
The Organization filed claim alleging that the Carrier created an "illegal Signalmen Position trouble desk" to obtain the work at a lower wage and creating a loss of overtime for the Claimant, who holds the qualified Assistant Foreman position. There are two Agreements which the Organization argues were violated by the Carrier when it established and assigned Signalman Alves to work at the Boston CETC Center Trouble Desk beginning on November 16, 2007, i.e., Appendix B-5, Section IV and the August 8, 1980 Memorandum of Agreement, Part 3, which read as follows:
The Organization argues that the Claimant was not properly called for overtime, even though he holds a regular assignment of second trick Assistant Foreman, Trouble Desk. Each time the Carrier utilized Alves as a Signalman on the Trouble Desk beginning on November 16, 2007, the Claimant was due four hours of overtime when the first shift incumbent was available to work four hours, or eight hours, if the incumbent of the first trick was not available to work four hours.
The Carrier contends that the Signalman Trouble Desk positions were created to provide assistance to the Dispatching Office. They were created due to the lack of qualified bids for the Assistant Foreman positions, and were learning positions. As Signalman Trouble Desk positions, for which Alves worked, they lacked qualifications and did not perform the work of the Assistant ForemanTrouble Desk.
The Carrier argues that Alves "did not perform work accruing to the assistant foreman-trouble desk position." Further, the Carrier did not violate the Agreement when it permitted Alves to work the Trouble Desk and blanked the third trick Assistant Foreman-Trouble Desk assignment. The Carrier argued that it had a managerial right to blank the third trick assignment and, in doing so, there was no overtime available. The work that the Assistant Foreman-Trouble Desk performed, such as trouble shooting switch and signal problems, was never performed by Alves, because he was unqualified. Nor did he perform the work of the Assistant Foreman class while working the Trouble Desk.
The burden of proof rests with the Organization and must be more than allegations. In this record, four letters were submitted that support the Organization's argument that Alves did perform Assistant Foreman work - not all of it, but a substantial part during the full time working at the Trouble Desk. Alves Form I
Alves was doing the same work on the Boston Trouble Desk as the Assistant Foremen were doing while he worked that position. There is no showing in this record that the Assistant Foremen working the Trouble Desk were doing different work at their station. There is no direct rebuttal.
The Carrier forcefully argued that the work performed was not reserved far the Assistant Foreman class, pointing to Third Division Award 28581. That Award is significantly different in finding that the Organization did not meet its burden of proof based on a general Scope Rule that work was reserved to those assigned to the Trouble Desk. In this instance there is no argument of scope, but the August 8, 1980, Assistant Signal Foreman Memorandum Agreement, Item 3 that those positions assigned to the Trouble Desk will be Assistant Signal Foremen and also Section IV, Trouble Desk Overtime Agreement that those vacant assignments would accrue first to Assistant Signal Foremen.
The Board is sensitive to the Carrier's dilemma, but required to enforce the negotiated language of the parties' Agreements. There is no rebuttal in this record that Alves was assigned to work a position at the Trouble Desk that under the Form 1 Page 5
Memorandum "will be classified as Assistant Foreman" and performed not all, but substantially the work of an Assistant Foreman. The Board finds no evidence that any of the work performed by Alves was work not performed during the time the Claimant would work the position as an Assistant Foreman; or for that matter, any evidence that additional trouble shooting of switches or signal problems, while critical functions, were anything other than rare occurrences with the brunt of responsibilities performed as indicated by signed statements. The work Alves performed on his position was that of the Communications and Signals Trouble Desk that by Agreement will be classified as Assistant Signal Foreman. Accordingly, the claim has merit.
Certainly, the Carrier has the right to blank positions, but it did not do so. This record indicates that it filled the C&S Trouble Desk vacancy with positions other than an Assistant Foreman. The record contains substantial probative evidence that Alves filled the vacancy and performed C&S Trouble Desk work exactly as the Assistant Foreman would perform. Accordingly, the Claimant lost the opportunity to work overtime under the Agreement.
The Carrier argued that the penalty requested is improper on this property, because straight time is paid for lost work opportunities. There is no rebuttal from the Organization and it, therefore, stands as fact.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
