Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 42195 Docket No. MW-42014 15-3-NRAB-00003-120360
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 to call and assign Messrs. R. Godfrey and W. Roberson to perform overtime service in connection with opening a switch at Mile Post 24 on the South Morrill Subdivision of the Nebraska Division on February 10, 2011 and instead called and assigned Mr. R. Hurlbutt (System File M-1135U-254/1553180).
(2) As a consequence of the violation referred to in Part (1) above,
Claimants R. Godfrey and W. Roberson shall now '. . . be allowed compensation equal to the amount of overtime hours that Mr. Ralph Hurlbutt worked on February 10, 2011, in performing the work that is the subject of this claim. Specifically, Claimants are entitled to three hours and forty minutes (3hr. 40 min.) of compensation at their applicable overtime 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.
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 arose on February 10, 2011, when the Carrier called and assigned a Roadway Equipment Operator (REO) R. Hurlbutt on overtime to open a switch located at the siding at Mile Post 24 on the South Morrill Subdivision of the Nebraska Division. The track switch was out of service at the time and in need of repair. The Claimants, a Section Foreman and a Section Truck Driver assigned to Section Gang 4800 on the Nebraska Subdivision, contend that the overtime work should have been assigned to them instead, because the Carrier has a contractual obligation to assign Track Subdepartment overtime work in seniority order to employees within the Track Subdepartment whenever the opportunity for such work arises. (REO Hurlbutt was a member of a different Subdepartment - the Roadway Equipment Subdepartment.)
One of the issues in this case is whether any actual repair work was performed on the switch, or if the switch was merely opened by Hurlbutt. The record establishes that the Carrier has a mixed practice regarding which forces may open switches. Where there is a mixed practice, no forces have the exclusive right to claim that the work should be assigned to them in preference to any other forces. Accordingly, if the switch was simply opened, and not repaired, the Claimants would have no special right to have been assigned the overtime. On the other hand, switch repairs are covered by Rule 9; so if the switch were both opened and repaired, the Claimants would have a colorable argument. The September 19, 2011 letter from Director of Labor Relations Pete Jeyaram refers to welding work that was performed, which would bring the work within the scope of work normally performed by Track Subdepartment personnel.
The Carrier points out that Rule 13, Subsection II, paragraph (b), provides: "Regular section forces assigned to the particular section where the work arises will be given preference over track maintenance gangs for overtime service." The switch in question was located at Milepost 24.2. According to the Claimants' Supervisor, Bob Mumm, their regularly assigned territory is between Milepost 40 and Milepost 80, so they would not be entitled to the overtime assignment. Claimant Godfrey's statement did not claim that he was assigned to the territory between Mileposts 0 and 82 all the time, however. Instead, the statement suggests that he was regularly assigned to that territory when the gang was working split weekends:
"On 02-10-2011, I was section foreman at Oshkosh, NE. Gang #4800. At this time we were on split weekends. My area during the 2 days that Martin Bay was off was from M.P. 0 to M.P. 82. The switch that needed [to be] thrown at M.P. 24.2 would have been my area since Martin Bay was off. R. Hurlbutt the backhoe operator was the one that was called by Bob Mumm. Shortly after this we quit the split weekends." (emphasis added)
The Carrier argues that there is an irreconcilable dispute on the facts that warrants the Board's dismissing the case per arbitral precedent. However, the dispute here is not actually irreconcilable. An irreconcilable dispute in facts arises when the evidence is in conflict and cannot be verified: for instance, two eye witnesses to the same event have different versions of what happened. If there is no corroborating evidence that supports one side or the other, there is no way to reconcile the different versions of what occurred. Disputes of fact are not irreconcilable if the facts can be verified to determine if one or the other (or neither, sometimes) is correct. Here, in response to Mumm's blanket statement, Claimant Godfrey's statement reasonably explained why Milepost 24.2 was within his assigned territory on February 10, 2011. The Carrier has records that it could have reviewed to determine whether Mumm or Godfrey was correct about the latter's assigned territory on February 10, 2011. It did not do so. When there are disputes of fact that are genuinely irreconcilable, the Board is compelled to dismiss the claim. But that is different from a case where the information is available, within the Carrier's control, and the Carrier fails to take reasonable steps to resolve the dispute in facts by checking its records. (1)Under the circumstances present here - where the Organization has presented credible evidence in support of its version of the facts and the Carrier has the means and ability to determine whether the Organization's version of facts is true and it fails to do so - the Organization should be deemed to have met its burden regarding the facts. To hold otherwise would encourage the party with access to information relevant to the disposition of the claim to hide it. The purpose of the claim and grievance process is to develop the facts, not to evade or ignore them.
The Carrier also asserted as a defense that REO Hurlbutt was assigned the overtime on February 10, 2011, because it was the same work that he had been doing at the straight time rate of pay that day. However, it offered no corroborating assignment or payroll records to corroborate that assertion. As the Parties frequently remind the Board in their briefs, assertions alone are not proof. The Carrier had the necessary information to support its defense but failed to produce it.
To summarize: (1) the Claimants, as members of the Track Subdepartment, are entitled to be assigned any track work on overtime in preference to an employee in the Roadway Equipment Subdepartment; (2) the work that was performed on the switch at Milepost 24.2, which involved not merely opening the switch but also welding, was traditional track work of the sort regularly assigned to the Claimants; (3) because the Carrier had the means to rebut Claimant Godfrey's explanation as to the location of his regular assignment on split weekends but did not do so, the Organization will be deemed to have satisfied its burden of proof on that fact. Accordingly, as the regular section forces assigned to the section where the work arose, the Claimants would be entitled to be assigned the overtime in preference to track maintenance gangs. The Carrier failed to submit any evidence to support its defense that REO Hurlbutt was entitled to the work because it was a continuation of his straight time assignment that day, so its defense is unproven. All of this leads the Board to conclude that the overtime in dispute was wrongly assigned to REO Hurlbutt.
That is not the end of the analysis, however. The evidence reveals that Hurlbutt worked three hours and forty minutes on the assignment; there is no evidence that anyone else worked with him. The claim was filed on behalf of both Godfrey and Roberson, but there is no evidence that both of them would have been required to perform the work done by Hurlbutt or, in the alternative, that the two of them working together could not have performed the job in significantly less time than Hurlbutt working alone. Accordingly, the Board is not willing to order that the Claimants each be paid the amount of time worked by Hurlbutt at the appropriate rate of pay. The case is remanded to the Parties for them to determine whether the two Claimants should split the three hours and forty minutes (at the appropriate rate of pay), or whether one of them should be paid for the entire three hours and forty minutes of work.
AWARD
Claim sustained in accordance with the Findings.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division
Dated at Chicago, Illinois, this 28th day of October 2015. The principle would be equally true if the Parties' positions were reversed (i.e., the information was uniquely within the control of the Organization).