Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43018 Docket No. MW-42297 18-3-NRAB-00003-130292

The Third Division consisted of the regular members and in addition Referee Margo R. Newman when award was rendered.

(Brotherhood of Maintenance of Way Employes Division PARTIES TO DISPUTE: (IBT Rail Conference

(

(Union Pacific Railroad Company former Missouri (Pacific Railroad Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when Mr. E. McMahon was not offered or allowed to perform overtime service in assisting with work on a frog on June 17, 2012 at Mile Post 549 on the Cherokee Subdivision and when junior employe B. Acree was called and assigned to perform said work (System File UP429LW12/1572086 MPR).

(2) As a consequence of the violation referred to in Part (1) above, the Claimant E. McMahon shall now be paid for eight and one-half (8.5) hours at his respective 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 employe or employes involved in this dispute are respectively carrier and employe 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 claim seeks overtime pay for the Claimant, who was working in the Foreman classification, for flagging work performed by junior employe Acree, a Trackman, on Sunday, June 17, 2012. In response to the claim, the Carrier submitted a statement from the Manager indicating that a Welder was called out to repair a broken frog and needed a lookout to provide track protection, so the Welder called Acree, who was fully qualified to perform flagging work.

The Organization asserts that the failure to call the Claimant violates his established superior seniority rights in violation of Rules 1, 2, 11, 19, 25 and 29. It states that acknowledgment of seniority rights has been a past practice. The Carrier contends that the Organization has failed to meet its burden of proving a violation of the Agreement, noting that there is nothing in the Agreement that reserves flagging work to Foremen, or any class or craft. It argues that the Claimant has no demand right to this work, and it is not obligated to pay more for protection work that any qualified employe can perform.

A careful review of the record convinces the Board that the Organization has failed to sustain its burden of proof in this case. None of the provisions cited by the Organization in its claim specifically reserve protection or flagging work to the Foreman classification, or to any particular class or craft. While the Claimant is senior to Acree, and may also have been qualified to perform the work in dispute, the Agreement does not obligate the Carrier to make such assignment to the Claimant based solely on seniority.

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 29th day of March 2018.