Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43548 Docket No. MW-43186 19-3-NRAB-00003-150428

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 employe C. Wilson to perform track protection work on May 31, 2014 between Mile Posts 300-375 on the Memphis Subdivision instead of calling and assigning senior employe J. Bouland thereto (System File UP636BT14/1610153 MPR).

(2) As a consequence of the violation referred to in Part (1) above, Claimant J. Bouland shall '... be paid fourteen (14) hoursovertime at a rate of one and one half times per hour.'"

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 in the Carrier's Maintenance of Way Bridge & Building Sub-department. At the time of this dispute, the Claimant was working as a foreman on Gang 1270. On May 31, 2014, a foreman was needed for track protectionforcontractorsbetweenMilePosts300-375ontheMemphisSubdivision.The Carrier called and assigned the overtime duties to C. Wilson, who is junior to the Claimant, and expended 14 hours of overtime service in performance of the work.

The Organization filed this claim on July 14, 2014, contending that the Claimant allowed junior employee to provide track protection for contractors despite the Claimant being senior, available, and qualified to perform the work. The Carrier denied the claim on August 4, 2014, stating that Claimant was offered the overtime work, but declined it. The parties were unable to resolve the claim on-property, so it is now properly before this Board for final adjudication.

The Organization contends that the Claimant was senior to Wilson, but the Carrier failed to call and offer the service to the Claimant. The Organization contends that the Claimant was available, fully qualified, and willing to perform the duties. The Organization contends that the Carrier's statement that the Claimant was offered the work but declined it is vague and fails to provide probative evidence to refute the Claimant's statement. The Organization contends that Munoz's statement fails to identify dates or times when the work was allegedly offered to Claimant.

The Carrier contends that the record demonstrates that the Claimant was offered the overtime work but declined it. The Carrier says that Claimant's statement to the contrary creates an irreconcilable dispute of facts, which cannot be resolved by this Board, and the Organization's claim must fail for lack of proof.

Manager Munoz provided this statement to show that the Claimant was offered the work but declined it:

"mr John Bouland was offer (sic) the opportunity to work that weekend he could never tell me for sure if he would work or not so i offer it to the assistant foreman."

The Claimant responded with this statement:

"I had been working with a set of contractors in Madison, AR on the Brinkley sub at 40.5. Due to the weather that week, they weren't going to work FridaySunday. I called Victor on Thursday and told him they weren't planning on working, and did he have anything else for me to do that weekend. He said no, but he had forgot about Curtis Brent Wilson working with a contractor cutting vegetation on the Memphis sub. Curtis Brent Wilson was asked on Tuesday to work that weekend. Victor forgot that he asked him to work. I am time claiming Curtis Brent Wilson because he worked hours that I could have since my job was cancelled for the weekend. "

The parties' Agreement provides, at Rule 1(c):

"Rights accruing to employes under their seniority entitles them to consideration for positions in accordance with their relative length of service with the railroad."

This Board has recognized numerous times that seniority is a valuable property right that must be respected by the Carrier, e.g., Third Division Award 24480. There is no dispute that the Claimant was senior to Wilson or that he was qualified to perform the duties in dispute. As such, if he was available, he should have been assigned to the overtime duties.

Although the Organization and the Carrier each submitted statements attesting to different versions of the offer, we do not find these statements irreconcilable. The Claimant contends that the work was not offered to him after he learned that he was available for weekend work, as Munoz forgot that a junior employee was asked on Tuesday to perform the weekend work. While Munoz stated that Claimant was asked but would not commit, there is no way to know when the offer was made. Second, there is no evidence that the Claimant, in fact, turned the work down. Munoz said that the Claimant would not commit but does not say how long he waited for the Claimant's answer. Munoz does not deny that the Claimant called him seeking weekend work or that he forgot that Wilson had been assigned. The record does not demonstrate that the Claimant refused thework, but only that Munoz did notwait for the Claimant's answer before offering the work to a junior employee and did not offer it when the Claimant said he was available.

It is the Carrier's responsibility to notify employees of temporary vacancies. The Carrier bears the burden of proving that it called the Claimant to offer him the work and that he refused it. The Carrier "has an obligation to make a reasonable effort to call the senior available employee to do overtime work, before using a junior employee todosuchwork."ThirdDivisionAward15640.Thestatementprovidedby theManager falls short of showing that the Carrier made reasonable effort to assign the senior employee who was available. It is not disputed that Wilson expended 14 hours performing overtime service on that weekend and that is the measure of the Claimant's loss as a consequence of the Carrier's violation of his seniority rights.

AWARD

Claim sustained.

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 27th day of March 2019.