Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43536 Docket No. MW-43001 19-3-NRAB-00003-150169

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 following Claimant J. Foley's

displacement onto the position of truck operator, the Carrier failed to allow the Claimant to operate said vehicle and instead assigned junior employe I. Sandoval to operate said vehicle on January 13 and 14, 2014 (System File UP928PA14/1599234 MPR).

(2) As a consequence of the violation referred to in Part (1) above,

Claimant J. Foley shall be allowed seven (7) hours' pay at his respective time and one-half rate."

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 Claimant established and holds seniority as a truck operator in the Track Subdepartment as well as other classes within the Carrier's Maintenance of Way Department. On January 13, 2014, the Claimant exercised his seniority and displaced 6 TN Truck Operator I.Sandoval on Gang 9141. Sandoval remained on the gang because therewasanadditionalopenpositionontheworkgroup.Sandovalcontinuedtooperate the 6 TN Truck while the Claimant remained in the yard loading trucks. While driving the 6 TN truck, Sandoval performed 8 hours of overtime track service on January 13 and 14, 2014.

The Organization filed a claim on February 1, 2014, asserting that Claimant, as the senior employee, should have been offered and assigned to perform the truck operator overtime service. The Carrier denied the claim on March 4, 2014, stating that the Claimant had advised Manager Daniels that he did not want to perform truck driving duties. The claim was further processed on property, but the parties were unable to reach a resolution. It is properly before this Board for final adjudication.

The Organization contends that the Claimant had displaced Sandoval as a truck operator of a 6 TN truck on Gang 9141, and he was, therefore, the regular employee to whom the overtime work should have accrued. The Organization further contends that Manager Daniel's statement that the Claimant had informed him that he did not want to drive a truck was refuted by Claimant's own statement that he had never expressed this to Daniels. The Organization contends that these statements do not change the irrefutable fact that Claimant displaced Sandoval and was, therefore, the regular employee assigned to the duties and was entitled to the work.

The Carrier contends that the work was properly assigned by Daniels. The Carrier contends that the Claimant is one of ten employees who work in this location andthey allperformthesametypeofwork.TheCarriercontendsthatallten employees are truck drivers, but some perform yard work and some drive the trucks, without regard to seniority. The Carrier contends that on the days in question, Sandoval was assigned to drive a truck, so he continued to perform those same duties after his regular assignmentandintoovertime. TheCarriercontendsthattheClaimantpreviously made clear to Daniels that he did not want to drive a truck if it resulted in mandatory overtime.

Rule 26(j) provides,

"(j) WORK ON UNASSIGNED DAYS. Where work is required by the Carrier to be performed on a day which is not a part of any assignment, it may be performed by an available extra or unassigned employee who will otherwise not have forty (40) hours of work that week; in all other cases by the regular employee."

Therefore, if Sandoval was properly assigned to perform this work, he was entitled to the additional work as the regular employee. The Carrier submitted a statement from Daniels,

"John Foley, bid out from this Truck driving job, and expressed to me personally, that he did not desire to drive a truck here at FW90. Upon his return, I allowed his bump, but worked Mr Sandoval extra, account I had another job, going up for bulletin. Everyone at FW90 Regional Track Store is a truck driver. There are ten of them. There is a pretty even mix of drivers with more seniority that work in the yard (5) and some with less seniority actually driving (5). All told, it is the intention of my Supervision to always proceed with the best plan of action, with the most capable drivers to protect the integrity of the railroad, and to move material expeditiously to and fromthis terminal to the end user, so as to not impede the progress of this company.John Foley said he did not want to drive, and that's why he's working in the yard."

The Organization submitted a statement from the Claimant disputing Daniels' statement,

"I john foley bumped back in fw90 on January 13th 2013. When I arrived and announced that I would be bumping Ivan Sandoval he actually was giving me the keys when then the supervisor Terrence Daniels told him do not give me the key and he was going to continue driving the truck. I have never "expressed" to Mr Terrence Daniel at anytime that I didn't wanttodrivethetruck"thatstatementisnottrue"Mr.Danielsnevereven told me why I wasn't doing the position that I bumped in on."

Daniels' statement that the Claimant expressed a reluctance to be assigned to drive a truck is contradicted by the Claimant's statement that he said no such thing. As an appellate forum, this Board is not able to reconcile the inconsistent statements. Furthermore, the Carrier has the right to make assignments among the ten truck drivers on Gang 9141,including assigningtheClaimant to unloading trucks in theyard. After carefulreview oftherecord,thisBoardconcludes that the Organization has failed to establish a violation of 26(j) of 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.