Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43362 Docket No. MW-44190 19-3-NRAB-00003-170110

The Third Division consisted of the regular members and in addition Referee Gerald E. Wallin when award was rendered.

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

PARTIES TO DISPUTE: (

(Dakota, Minnesota & Eastern Railroad Corporation

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it withheld Mr. N. Allnut from his bulletined and assigned track inspector position headquartered in Chillicothe, Missouri beginning on July 15, 2015 and continuing and when it failed to properly compensate him therefore (System File G-1513D-302 DME).

(2) As a consequence of the violation referred to in Part (1) above, Claimant N. Allnut shall now:

'*** be compensated for all overtime hours worked by employee Steven Loyd; EID #827870, who was assigned as an Assistant Foreman but instructed to fulfill the Claimant's assigned position of Track Inspector. The Overtime should be paid at the applicable rate of pay which is currently $37.61 per hour. The Organization is certain that Mr. Loyd worked .5 hour of OT on July 15, .5 hour OT on July 16, .5 hours OT on July 18, .5 hour OT on July 24, 3.5 hours OT on July 29, 1 hour OT on August 12, .5 hour OT on August 13, .5 hour OT on August 15, 4 hours OT on August 16 and .5 hours OT on August 19, 2015.

It is also the claim of the Brotherhood that the Carrier failed to properly compensate the Claimant for all straight time, holiday, vacation, and overtime hours compensated between July 15, 2015 and September 9, 2015 and continuing. The Claimant must be compensated for the difference in pay between the Welder Helper Rate $23.06 per hour which the Carrier directed him to work and compensated him at and that of the position of Track Inspector $25.07 per hours which he was assigned between which he was assigned from July 15, 2015 forward for all hours at the applicable rate of pay. It should be noted that this is an ongoing claim per Rule 336 of the January 1, 2013 Agreement.' "

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.

The basic facts are not in dispute in this rules claim. It is directly related to the claim in Third Division Award (Insert Award number for Docket MW-44189) between these same parties.

The Claimant was a Welder Helper who was awarded a new position of Track Inspector headquartered in Chillicothe, Missouri. The Carrier did not release him to assume the new position for some time thereafter. Had he assumed the new position by July 15^th, the claim asserts he could have received higher pay as well as some several hours of overtime. Because the Claimant was retained in the Welder Helper position, he could not assume the Track Inspector position. The person who was to vacate the Track Inspector position was, as a result, not allowed to move on to a new position that he had been awarded. That related withholding led to the dispute in Third Division Award (Insert Award number for Docket MW-44189).

Except for the number of overtime hours claimed, the basic facts of the instant claim are virtually identical to those involved in Award (Insert Award number for Docket MW-44189). The following rationale expressed in that Award is restated here for clarity as follows:

• * *

"The Organization cites Rule 9, Paragraph 8, and Rule 15, Paragraph 1 in support of the claim. Those rules read, in pertinent part, as follows:

• * *

'[Rule 9]

8. The name of the successful applicant will be posted for five (5) calendar days in the same manner as the original posting. However, this does not preclude the Carrier from withholding the employee to meet business needs. Employees withheld will be paid the rate of the newly awarded assignment or their current assignment, whichever is higher.

* *

[Rule 15]

1. * * * Overtime will be distributed first to the employees who regularly perform the work and, thereafter, as equitable as practical to all employees qualified and reasonably available to perform the required work."'

• * *

(Italics supplied)

As written, the language of Rule 9, Paragraph 1 does not impose any limit on the length of time a successful applicant may be retained in a former position by the Carrier. The relevant language requires only that the withheld employee be paid for time worked at the rate of the newly awarded assignment if it is higher than the rate for the position in which the employee is retained.

Regarding the overtime component of the claim, once again, as written, overtime work goes first to the employees who regularly perform the overtime work. Until the Claimant is released to assume the newly awarded position, he cannot be an employee who regularly performs the work; therefore he is not eligible for the disputed overtime work under that portion of the rule. Similarly, while Claimant is retained in his former position, he is not "... reasonably available ..." to perform the overtime work under that portion of the rule.

Given the text of the applicable rules, we find the Organization has not sustained its burden of proof to establish Claimant's right to be paid for the missed overtime work in the Assistant Foreman position.

* *

In the claim as well as Paragraph 4 of its March 18, 2016 letter confirming the conference on the property, the Organization asserted that the Carrier failed to pay Claimant at the higher rate of pay to which he was entitled. As previously noted, Rule 9 entitles a withheld employee to be paid for all hours worked in the position in which he is retained if the newly awarded position has a higher rate of pay. On the record before us, it is not clear that Claimant has been paid in accordance with the rule. Therefore, the claim is sustained in part as follows: The Carrier is ordered to review its records and pay Claimant in accordance with Rule 9, Paragraph 8 if it has not already done so.

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 14th day of December 2018.