Respectfully submitted,Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 42575 Docket No. MW-42264 17-3-NRAB-00003-130251
The Third Division consisted of the regular members and in addition Referee Robert A. Grey when award was rendered.
(Brotherhood of Maintenance of Way Employes Division ( IBT Rail Conference
PARTIES TO DISPUTE: (
(Springfield Terminal Railway 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 Mr. R. Parker for overtime service at Rumford Yard on February 3, 2012 and instead called junior employe J. Blanchard (Carrier's File MW-12-14).
(2) As a consequence of the violation referred to in Part (1) above, Claimant R. Parker shall now be compensated for three (3) hours at his 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. Form 1 Award No. 42575
Page 2 Docket No. MW-42264
17-3-NRAB-00003-130251
In an Award on this property, between these parties, the Third Division ruled that when the Carrier presents a supervisor's statement as proof that an overtime call was made and that the employe did not answer, it is not incumbent upon the Carrier to provide additional documentation of the call. See Third Division Award 41810. The claim at hand is indistinguishable.
Third Division Award 41810 is not palpably erroneous. The Board notes that neither party dissented from it. Nothing in the record provides a basis for deviating from the on-property precedent established by this Award. It will therefore be followed in the interest of stability.
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 19th day of April 2017.
LABOR MEMBER'S DISSENT
TO
AWARD 42575, DOCKET MW-42264 (Referee Robert A. Grey)
In this case, the Majority erred in its decision. The Majority held that the Carrier was not required to present any evidence other than a supervisor's statement to establish that an overtime call was made. The Majority cited Award 41810 and held that the instant case is indistinguishable from said award. However, Award 41810 held:
"*** The underlying basis for the claim is the Organization's assertion that the Claimant was not called for the overtime assignment in question. The Carrier presented proof to the contrary and the Organization failed to rebut such proof. It was not incumbent upon the Carrier to provide additional documentation under these circumstances. ***"
Award 41810 was decided on the basis that the Organization failed to rebut the Carrier's evidence that the Claimant was offered the overtime by a supervisor. In the instant case, the Organization directly challenged the Carrier's assertion and specifically requested documentation such as phone records to establish that the Claimant was in fact offered the overtime work. Accordingly, this case is substantially different from the facts of Award 41810 and is easily distinguishable.
Moreover, the Majority failed to consider on property Award 73 of Public Law Board No. 5606, which involved a nearly identical question and, in pertinent part, held:
"Lastly, the Carrier says since the Organization has not provided any evidence to establish that the Claimant was not called, or refute the contention that he was called, but could not be reached, there exists a dispute of material facts that precludes the Board from issuing a sustaining award.
The Board finds the Carrier's position untenable. The record may not be read as
involving a dispute of material facts. The Claimant was entitled to be called for the
overtime work pursuant to Section 10.4(d) of the Agreement. It was incumbent upon
the Carrier to show probative support for its contention that Claimant was asked or
called and refused the overtime work, or, in the alternative, the extent of effort that
was made to contact Claimant in support of argument that he was unable to be
reached for the overtime work."
For the above mentioned reasons, decisions. Therefore, I respectfully dissent.
it is clear that the Majority erred in rendering its
Respectfully submitted,
Zachary C. Voegel Labor Member
CARRIER MEMBERS' CONCURRING OPINION to Third Division Aw ard 42575
Docket No. MW-42264 Referee Robert A. Grey
The Carrier concurs with the holding of Award 42575.
The dispute involved in Award 42575 is directly analogous in all material ways to the dispute involved in Third Division Award 41810, which was cited by the Majority in this Award 42575. In both matters, the Carrier had established with evidence of a supervisor's statement, that the Claimants had been called for the overtime assignments at issue in each dispute. In both cases, the Organization sought further proof from the Carrier, specifically in the form of telephone records. In both disputes, the Majority correctly concluded that the Carrier provided sufficient proof to refute the Claimants' assertions and no further proof of the kind that the Organization was specifically demanding was necessary.
Award 42575 is consistent with the analysis and holding of Award 41810. Accordingly, this
Award 42575 and prior Award 41810 stand as uniform precedent on the property to be followed
in future similar disputes.
May 31, 2017
Matthew R. Holt Carrier Member