Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42184 Docket No. MW-41642 15-3-NRAB-00003-110324

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

(Brotherhood of Maintenance of Way Employes Division ( IBT 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 failed and refused to properly bulletin the Group 26(d-3) System Gang Boom Truck Operator position for Truck Number 62305 on Gang 8536 and when it failed and refused to bulletin a Group 26(d-3) System Gang Dump Truck Driver position for Truck Number 053433 on Gang 8536 (System File RC-1020U-502/1534693).

(2) As a consequence of the violation referred to in Part (1) above, the aforesaid Gang 8536 Dump Truck Driver position and the System Gang Boom Truck Operator positions shall now '... be put up for bid and/or abolished and readvertised correctly. Furthermore, Claimants Mr. Ramon Ozuna and Mr. Raymond W. Aguirre are to each be compensated the difference in wages, both straight time and overtime, between their current positions and the positions identified above, since February 8, 2010, until such time as they are afforded the opportunity to bid on the identified trucks. ***"

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.

Claimant R. Ozuna has an established seniority date of June 1, 1979, and Claimant R. Aguirre's seniority dates back to September 6, 1976. At the time of the events giving rise to this claim, Ozuna was regularly assigned to a System Gang Truck Operator position that was lower rated than the System Gang Boom Truck Operator position in dispute. Aguirre was regularly assigned to a System Gang Truck Operator position that was lower rated than the System Gang Dump Truck Driver position in dispute.

Beginning in early February 2010, the Carrier assigned Group 26(d-3) Boom Truck Number 62305 to System Gang 8536, which meant that the Boom Truck Operator position had to be advertised and bulletined. The record establishes that the position was posted with a Crane Certification qualification that appeared to be incorrect, because the knuckle boom on Truck Number 62305 did not require a crane certification. According to the Organization, Claimant Ozuna and other employees assigned to Gang 8536 notified Supervisor D. Ortiz of the error. Ortiz told them to "call the union" and did not correct the mistake. The Organization further contends that at the same time, the Carrier assigned Group 26(d-3) Dump Truck Number 053433 to System Gang 9536 and was assigning various employees to operate the truck on a daily basis instead of bulletining a new vacant position to be filled properly.

The Organization filed this claim on March 4, 2010, to challenge the improper bulletining of the boom truck position and the failure to bulletin the dump truck position at all. The thrust of its argument is that the Carrier's failure to properly bulletin and assign the two positions denied the Claimants, who would have been the senior bidders, the opportunity to work in higher rated positions. The Carrier responded first that the Boom Truck Operator sometimes acted as a reliever for other boom truck operators and, therefore, needed to have the OSHA Boom certification. Second, in order to cut costs the dump truck was used only occasionally and, therefore, the Carrier was not obligated to post a driver position for it.

The burden of proof in contract interpretation claims is on the Organization. There is evidence in the record, in the form of a statement from Manager of Track Services Maddex, that the dump truck was not being used on a daily basis. The Agreement requires that the Carrier bulletin a new position after 30 days; if the dump truck was not used for 30 days continuously, there would be no obligation to post a new driver position. The Organization has not submitted adequate evidence to rebut Maddex's statement of only occasional use and, accordingly, failed to meet its burden of proof with respect to that part of the claim related to Dump Truck No. 053433. That part of the claim is denied.

Regarding the Boom Truck Operator position, Maddex indicated that the driver of Boom Truck No. 62305 acts as a reliever for other drivers on the gang and for that reason needs to have the crane certification. In addition, if Claimant Ozuna was not satisfied with Supervisor Ortiz' statement to "go to the Union," there were other steps that he could have taken - such as contacting the Department responsible for bulletining and posting positions - in order to get answers to his questions about why the position was posted as it was and, if he was correct about its being improperly advertised, to have the position properly and promptly re-bulletined. He failed to do so. Again, Maddex's statement puts the burden back on the Organization to prove that the position was improperly bulletined and it failed to do so. Accordingly, the claim as it relates to the Boom Truck Operator position is also denied.

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 28th day of October 2015.