Form 1                 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43989 Docket No. MW-45268 20-3-NRAB-00003-190043

The Third Division consisted of the regular members and in addition Referee Elizabeth C. Wesman when the award was rendered.

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

PARTIES TO DISPUTE: (

(Dakata, Minnesota & Eastern Railroad Corporation

STATEMENT OF CLAIM:

“Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier placed a Rotary Dump Truck (#E15009) into Service beginning on May 3, 2017 and continuing and failed to bulletin and assign said position (System File G-1709D-301/USA-BMWED_DM&E-2017-00075 DME).

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

Claimant S. Tabbert shall now ‘*** be compensated for all hours worked by the Rotary Dump Truck Position as stated earlier in the claim, at the applicable rate of pay,’ (Emphasis in original).

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 incident leading to this claim occurred on May 3, 2017 and dates thereafter, when the Carrier began making use of a rotary dump truck and did not first bulletin and then assign the position of rotary dump truck driver. The Organization filed a claim on behalf of Claimant S. Tabbert, who holds seniority in the Maintenance of Way Department in Chillicothe, Missouri, on July 2, 2017. The Carrier denied the claim on August 22, 2017. The Organization appealed the denial on October 17, 2017, and the matter was progressed in accordance with the Parties’ Agreement. It is therefore properly before this Board.

The Organization protests that the assignment of driving the rotary dump truck should rightfully have been bulletined with bids accepted before it was arbitrarily assigned to any employee. It notes that the truck was used intermittently but points out that the Claimant was the most senior employee available and should have been availed to opportunity to bid on the work for which it was used, including any overtime accruing. The Organization also asserts that use of the truck appears to have been sufficiently frequent as to constitute a new position – and thus should have been bulletined, or at the least, offered to the Claimant as overtime work.

The Carrier insists that the operation of the truck at issue was sporadic and did not in any way constitute abuse of its contractual right to assign “additional work as needed” to a qualified employee without bulletining every new task. It points out that the truck was used no more than thirty days in the three months between May and July, and that employees were assigned on an ad hoc basis, and no one employee operated it every time. Moreover, it notes that Claimant was fully employed and suffered no loss of wages in connection with the sporadic work performed by the dump truck. In support of its position the Carrier cites Rule 4 of the Parties’ Agreement.

The Board has reviewed the documentary evidence in this case and does not find, in these particular circumstances, that the task at issue truly constituted a “new position” that would require proper bulletining. However, we caution the Carrier, that its right to assign “additional tasks as needed” does not constitute carte blanche in assignment of operation of that equipment if it is purchased and employed on a consistent and regular basis at a facility. On the facts of this case, however, the Organization has not provided sufficient evidence to sustain its claim that thisparticular task should have been bulletined. Accordingly, the entirety.

AWARD Claim denied.

ORDER

This Board, after consideration of the dispute identified that an Award favorable to the Claimant(s) not be made.

claim is denied in its

above, hereby orders

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 5th day of March 2020.