Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43719 Docket No. MW-42742 19-3-NRAB-00003-140427

The Third Division consisted of the regular members and in addition Referee Jeanne M. Vonhof when award was rendered.

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

PARTIES TO DISPUTE: (

(Union Pacific Railroad Company (former Chicago

and North Western Transportation Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier failed to properly bulletin and assign the position of Foreman Class 1 on Gang 2948 headquartered at Fort Dodge, Iowa beginning April 8, 2013 and when it assigned Junior employee J. Kellner thereto instead of Mr. J. Waldschmidt who was senior and qualified (System File G1316C-01/1585934 CNW).

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

'*** be compensated for the difference in pay between the Foreman Class 2 in which he was working and that of a Foreman Class 1 which the Carrier denied him the opportunity to bid on by failing to bulletin a known vacancy, and for any straight time and overtime work opportunity to which he would have been entitled had he been properly assigned to the position of foreman on Gang 2948.

This claim is being filed according to Rule 21 D as a continuing claim. It will include all hours worked by Gang 2948 beginning April 8, 2013 and continuing until the position is properly bulletined and assigned.' "

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.

Claimant J. Waldschmidt established and maintains seniority in the Carrier's Maintenance of Way and Structures Department. During the time relevant to this dispute, he was assigned as a Foreman Class 2 on Gang 2948, performing the work of a tamper operator. Also assigned with him on the two-person gang was Employee J. Kellner, who had a bulletined Machine Operator Class B assignment, and was working as a ballast regulator operator. There was no foreman assigned to the gang.

The Organization claimed that the Carrier violated various Rules when it failed to bulletin and assign a Foreman Class 1 to Gang 2948. The Organization alleged that Kellner was assigned to perform the duties of a Class 1 Foreman beginning April 8, 2013 and continuing until May 24, 2013. Because this period lasted for more than 30 days, the Organization argues that the Carrier was required to bulletin a Foreman position under Rule 16. The Organization further claims that Claimant Waldschmidt suffered a loss of compensation when he was not appointed to the Foreman Class 1 position, based upon his seniority. The claim was filed as a continuing claim, to include all hours worked by Gang 2948 "until the position is properly bulletined and assigned."

Rule 16(A) provides, in relevant part,

"RULE 16 - BULLETINING NEW POSITIONS AND VACANCIES

A. All new or vacant positions of a class coming within the scope of this Agreement, known to be of thirty (30) calendar or more days

duration, shall be bulletined for a period of seven (7) calendar days and assigned within three (3) calendar days subsequent to termination of the bulletin.

• * *

B. Vacancies of less than thirty (30) calendar days duration may be filled without bulletining by the senior qualified employees in the district and group making request in writing, consistent with operational requirements.

* *

C. Positions covered by paragraph B hereof, if extended beyond thirty (30) days shall be bulletined when it becomes evident they shall extend beyond thirty (30) days. Positions bulletined as temporary or seasonal, which become permanent, shall be rebulletined."

The Carrier argues that the Organization is demanding that a foreman position be bulletined where no vacancy existed. According to the Carrier, it regularly has two-man surfacing gangs, which perform their duties without the assignment of a foreman. The Carrier contends further that Employee Kellner's work obtaining track and time authority is a duty shared by many employees, and does not establish that he was performing foreman work.

The Organization relies upon payroll records demonstrating that the Carrier paid Employee Kellner for "composite service" as a Foreman Class 1 during this period, as proof that he was performing foreman duties and that a foreman vacancy existed. Composite service permits an employee to receive a higher rate of pay for performing duties of another position, for a portion of the day or the entire day, along with the duties of his regular bulletined position. The Organization claims that it was unaware of the Carrier employing two-person gangs without a foreman.

Paying Kellner for composite service as a Foreman Class 1 demonstrates that he was performing foreman duties during the period of the claim. If, as the Carrier contends, many employee classifications seek track and time authority, there would have been no need for the Carrier to pay Kellner for composite service as a foreman if obtaining such clearance were his only additional duty. The Organization has established that Kellner was performing Foreman Class 1 duties for at least part of the day when he was paid for composite service on 28 days during the period of the claim.

Rule 16 requires the filling of a vacancy if it extends for 30 "calendar days duration" or more. Kellner was not paid as a foreman every day he worked during the claim period. He was paid intermittently for foreman duties on 28 days over a 53day period. The evidence does not establish how much time he spent in performing foreman duties on those days. This evidence is not sufficient to demonstrate the existence of a foreman vacancy on this gang that lasted at least "30 calendar days duration." In Third Division Award 41578, (Referee Peter Meyers) this Board concluded in a similar dispute,

"The record reveals that the work involved was incidental to the work that the Track Foreman was already performing. Moreover, the Agreement requires the Carrier to bulletin and assign a position to a machine when it is operated for more than 30 days. The record contains insufficient evidence to show that the Track Foreman operated the machine for more than 30 days."

When the Organization fails to provide factual evidence proving that a position must be bulletined under the applicable Rules, its claim that the Carrier has violated the Agreement by not bulletining the position must be denied. Third Division Award 40210. The Board concludes that the Organization has failed to meet its burden to prove that the Carrier violated the Agreement when it failed to bulletin a position for a Class 1 Foreman vacancy on Gang 2948. The burden of proof lies with the Organization to prove its claim and when it fails to sustain that burden, the claim must be denied. Third Division Awards 26033, 27851, 27895.

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 18th day of June 2019.