Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43526 Docket No. MW-42640 19-3-NRAB-00003-140322

The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when award was rendered.

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

PARTIES TO DISPUTE: (

(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 the Carrier assigned junior employes V. Barbarick and G. Robinson to perform relief track protection work (flagging) in connection with a bridge construction project over the Osage River between Mile Posts 116.1 and 117.5 on the Jefferson City Subdivision on March 8, 9, 14, 15 and 16, 2013 instead of assigning employe K. Malzner who was senior and available (System File UP604BT13/1584511 MPR).

(2) As a consequence of the violation referred to in Part (1) above, Claimant K. Malzner shall be allowed twenty-four (24) hours' straight time pay and fifty-one (51) hours' overtime pay at the applicable rates." "

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 dispute involves a flagging assignment to be performed on March 8, 9, 14, 15, and 16, 2013, between Mileposts 116 and 117.5 on the Jefferson City Subdivision while the regularly assigned employe was observing vacation. In response to the claim, Supervisor Bass provided a statement that he contacted the Claimant's direct supervisor to see if the Claimant would be available for the flagging assignment. According to Bass's unrefuted statement, the Claimant's supervisor would not commit to the Claimant's availability for the entire period, so Bass looked elsewhere to fill the temporary vacancy. Barbarick and Robinson, the assigned employes, worked fifteen hours each day, accumulating 24 straight-time and 51 overtime hours.

The Organization contends that the Claimant was senior to Barbarick and Robinson, but the Carrier failed to call and offer the assignment to Claimant. The Organization contends that the Claimant was available, fully qualified, and willing to perform the flagging duties. The Organization contends that Barbarick and Robinson were also regularly assigned at the time of the flagging assignment, so were no more available than the Claimant.

The Carrier contends that the record does not demonstrate that the Claimant was senior to Barbarick and Robinson, as their seniority dates cannot be compared. The Carrier contends that when a vacancy occurs, the Agreement provides that it may assign employes that are immediately available, and Bass was informed by the Claimant's direct supervisor that he was needed to perform his regular duties. Thus, the Carrier contends that the Claimant was not immediately available, and the Carrier was free to look elsewhere to assist with the vacancy.

Where the Carrier must fill a vacancy, the parties have agreed upon the process to fill it. Rule 2(c) reads as follows:

"When a vacancy occurs in a gang, the Carrier may fill such vacancy by offering the vacant position, in seniority order, to other employees in the gang holding seniority in the classification who are working in a lower rated position. In the event no such employee is available, the Carrier may assign such employees holding seniority in that classification working on the division where the gang is currently assigned that are immediately available (regardless of whether the gang was bulletined as division, zone or system), with immediate notification to the junior cut-off employee (with confirmation to the General Chairman), who will be permitted to go to the job under the existing rules."

The burden is on the Organization to show a violation of the Agreement. While there is no doubt that seniority is a valuable property right of an employe, this record fails to demonstrate that the Claimant was, in fact, senior to Barbarick and Robinson.

The Claimant was willing to perform the flagging work and the Carrier sought his service, but his direct supervisor was unable to release him from his regular assignment to fill the flagging vacancy. Thus, the Carrier has demonstrated that the Claimant was not available. The Organization has failed to demonstrate that the Carrier's decision to look elsewhere violated the Agreement.

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 27th day of March 2019.