Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44080 Docket No. MW-43848
20-3-NRAB-00003-190606
The Third Division consisted of the regular members and in addition Referee Paul S. Betts when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(Union Pacific Railroad Company (Former Missouri Pacific) STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier allowed junior Foreman T. Houston to flag for contractors instead of Claimant
S. Weathersby, Jr. on June 12, 18, 19, 20 and 21, 2015 and continuing (System File UP993PA15/ 1632234 MPR).
As a consequence of the violation referred to in Part (1) above, Claimant S. Weathersby, Jr. must be allowed forty-one (41) hours at his time and one-half rate of pay.”
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.
In the instant dispute, the Organization alleges the Carrier violated the Agreement when on June 12, 18, 19, 20, and 21, 2015, it allowed Foreman Houston to flag for contractors rather the Claimant, who is senior to Foreman Houston.
In summary, the Organization argues a) the Carrier violated the Claimant’s seniority rights. The Claimant was superior in all relevant seniority to Foreman Houston. Both the Claimant and Foreman Houston were regularly assigned to Gang 3554. In spite of the fact that the Claimant was superior in seniority and was assigned to the same Gang as Foreman Houston, Manager Bateman assigned the junior employee to perform the disputed flagging duties, b) the Carrier violated the Agreement by failing to bulletin the position in question, c) the Carrier’s primary “regular employee” defense fails, and d) the remedy request is proper.
In summary, the Carrier argues a) Foreman Houston was the regular assigned employee performing the flagging duties and properly worked the overtime continuous with his straight time hours, b) the Organization failed to show that the temporary Flagging Foreman work was performed for at least ten days, thereby requiring that the position be bulletined, and c) the Organization failed to meet its burden.
After a thorough review of the record, the Board finds the Organization failed to meet its burden. Both the Claimant and Foreman Houston were regularly assigned to Gang 3554. Foreman Houston worked as the Foreman and the Claimant worked as a Bridge Carpenter. At the time in dispute, Foreman Houston was directed to temporarily perform Flagging Foreman duties. The Claimant, who was qualified and held Foreman seniority, worked as the gang’s Foreman while Foreman Houston performed the temporary flagging duties. Foreman Houston performed the Flagging Foreman duties as part of his regular assigned duties during the time in dispute. As a result, and under Rule 26(j), any overtime worked in conjunction with that work would flow to Foreman Houston. Rule 26(j) states the following:
“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.”
Here, the regularly assigned employee performing the flagging duties was Foreman Houston, not the Claimant. The overtime flows from the regular assignment, and in the case at hand, the overtime in question was a continuation of the regular work
being performed by Foreman Houston. [see Third Division Awards 40405, 31294, 28500]
The Organization also argues that the Carrier violated the Agreement by failing to bulletin the position in question because the work here took place over ten days pursuant to Rule 20. The Organization maintains that if the position had been properly bulletined in accordance with Rule 20, the Claimant would have been awarded the position. The Board respectfully disagrees. Here, Foreman Houston only performed the flagging duties for five days, less than the ten-day requirement in Rule 20. Given this fact, the Carrier was not required to bulletin the job pursuant to Rule 20.
As indicated above, the overtime in dispute here was a continuation of Foreman Houston’s regular assignment. As a result, the claim is denied.
Although the Board may not have repeated every item of documentary evidence, nor all the arguments presented, we have considered all the relevant evidence and arguments presented in rendering this Award.
Claim denied.
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 11th day of August 2020.