Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42965 Docket No. MW-42593 18-3-NRAB-00003-140282

The Third Division consisted of the regular members and in addition Referee Michael G. Whelan when award was rendered.

(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference

PARTIES TO DISPUTE: (

(BNSF Railway Company (Former Burlington Northern (Railroad Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it assigned Mr. F. Parker to perform overtime truck driving work near Everett, Washington from 3:00 P.M. December 18, 2012 until 7:00 A.M. December 19, 2012 instead of calling and assigning Truck Driver P. Boober thereto (System File S-P-1684-G/11-13-0132 BNR).

(2) As a consequence of the violation referred to in Part (1) above, Claimant P. Boober shall be allowed '... 16 hours overtime and all benefits that the Claimant did not receive because of these violations."

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.

On the afternoon of December 17, 2012, a train derailment occurred near Everett, Washington. As a result of the derailment, the Carrier called in Mobile Maintenance Gang TMGX1207 to work on the derailment.

The Organization submits that on December 18, 2012, the Carrier assigned F. Parker, a Foreman on Mobile Maintenance Gang TMGX1207, to an overtime assignment driving a truck the Claimant had been driving and maintaining, instead of assigning the Claimant who was a section gang truck driver near Everett, Washington. The Organization also submits that the Claimant is senior to employee F. Parker in the classification of truck driver, and that Parker was not assigned as a truck driver; did not regularly drive the truck used to perform this work; and did not hold an assignment on the section where the truck driving work took place.

The Organization argues that it was a violation of the Agreement to allow F. Parker to perform this truck driving work. Specifically, the Organization alleges that the Carrier violated Rule 2 Seniority Rights and Sub-Department Limits, Rule 5 Seniority Rosters, Rule 6 Basic Seniority Districts, Rule 29 Overtime, and Rule 55 Classification of Work. As a remedy, the Organization claims that the Claimant should be compensated for 16 hours at an overtime rate.

The Carrier submits that this is an intra-craft dispute, and to prevail, the Organization must establish that the disputed work has been exclusively performed by truck drivers on a system-wide basis. The Carrier also insists that there is no rule in the Agreement that reserves any work to employees, and the rules cited by the Organization do not support its reservation of work arguments. In addition, the Carrier cites Rule 78 Intra-Craft Work Jurisdiction to support its position that it was permissible under the Agreement to assign the work as it did. The Carrier argues that the Organization has failed to meet its burden to establish system-wide exclusivity of the work in question, the type of work performed, or damages. Finally, the Carrier argues that the work in question was performed on an emergency basis, and that it has greater latitude in assigning work in emergency situations.

The Carrier argues that Rule 55 and the other rules cited by the Organization do not reserve any particular type of work - in this case truck driving - to any classification. There is considerable past arbitral support for the Carrier's argument. As noted in Third Division Award 39646:

"Prior Awards have established that Rule 55 is a classification Rule, not a jurisdiction Rule. … Th e majority of Awards indicate that for the Organization to claim that particular work is reserved for a particular classification, it must show not only that the work is by custom, practice and tradition performed by the classification claiming the work in the location of the claim, but that the work is performed exclusively by that classification system-wide. … It is universally accepted that the Organization bears the burden of proof to establish its claim."

The Organization did not enter any evidence to meet this burden as it concerns truck drivers. Rather, it presented a secondary argument that even if the Agreement does not prohibit a foreman from performing truck driving work, the Claimant, who was assigned as a truck driver, should be given preference for an overtime assignment as a truck driver. Giving overtime preference to an employee assigned in the classification called for in an overtime assignment may be common and is certainly reasonable, but there may be little practical distinction between preference and obligation, such that requiring classification preference would create a de facto classification rule for assignment of overtime.

The Organization's central argument is based on seniority. There is arbitral precedent between the parties dating back many years holding that the seniority protections of Rule 2 apply to the assignment of overtime. Third Division Award 19758 - issued in 1973 - involved two employees assigned to the same classification in the same location, and held that seniority must be observed in assigning overtime. That Award also discussed exceptions where seniority was not observed under certain circumstances, including when a junior employee was working on a certain task that he had to complete; the availability of employees to work; emergencies; and contractual rules that permitted carriers to not observe seniority in assignments. Under this interpretation of Rule 2, when there is a need for a truck driver for overtime work, generally the most senior truck driver should be offered the work.

In the instant case, the Organization alleges that the Claimant was assigned as a truck driver and held seniority over F. Parker, who was assigned as a foreman. These allegations have been established in the record. Seniority rosters in evidence establish that the Claimant held seniority over F. Parker as a truck driver. The Carrier also admitted in its Declination of Claim that, on the dates in question, the Claimant was assigned as a truck driver, and F. Parker was assigned as a foreman on Mobile Maintenance Gang TMGX1207.

To prevail on this claim, it is also necessary for the Organization to prove its allegation that the Claimant was fully qualified and willing to perform the work assigned to F. Parker, and that F. Parker worked overtime as a truck driver for 16 hours on December 18 and 19, 2012. There is no evidence in the record that establishes what type of work F. Parker performed or whether he worked overtime on these dates. Thus, the Organization did not establish that the Claimant was qualified to perform work allegedly performed by F. Parker or that F. Parker worked overtime as a truck driver for 16 hours on December 18 and 19, 2012.

Even if the Organization had established that F. Parker was working as a truck driver on December 18 and 19, 2012, it failed to provide evidence that the Claimant was available for work on these dates. A statement from the Claimant is evidence that he was not given the opportunity to work overtime on December 17 and 18, 2012, but that statement does not address his availability for work on December 18 and 19, 2012, or his claim for overtime on December 19, 2012.

The burden of proof lies with the Organization to establish the elements of its claim. It has not done so here, and therefore the claim must be dismissed

AWARD

Claim dismissed.

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 February 2018.