Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44331
Docket No. 43924 16-3-NRAB-00003-160670
20-3-NRAB-00003-190618
The Third Division consisted of the regular members and in addition Referee Erica Tener when award was rendered.
(BROTHERHOOD OF MAINTENANCE OF WAY (EMPLOYES DIVISION – IBT RAIL CONFERENCE
(UNION PACIFIC RAILROAD COMPANY (former
Southern Pacific Western Lines)
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier failed to assign Mr. R. Cruz to overtime service at Mile Post 55 on the Oakland Subdivision on May 23, 2015 and instead assigned junior employe T. Melin (System File T-1505S-904/1631616 SPW).
As a consequence of the violation referred to in Part (1) above, Claimant R. Cruz must now be paid four (4) hours at his overtime 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.
R. Cruz (Claimant) and T. Melin have established and hold seniority in various classifications within the Track Sub-department, including track supervisor, within the Maintenance of Way and Structures Department. The Claimant’s established seniority date as a track supervisor is November 12, 2004. At the time of the dispute he was regularly assigned as such on Gang 8881. Melin’s seniority date for the same classification is December 19, 2014 and was assigned as track supervisor on Gang 7345. On May 23, 2015, the Carrier required overtime services of a track supervisor to inspect a situation in which a car ran onto a track at Milepost 55 on the Oakland Subdivision. The Carrier offered and assigned the work to Melin.
The Organization filed the instant claim on July 16, 2015 on behalf of the Claimant asserting that the work in question was assigned to an employee with less seniority than the Claimant and this assignment violated the Agreement. The parties were unable to resolve the matter after processing it in the normal and customary manner on property. This dispute is now properly before this Board for final adjudication.
The Organization disputes the Carrier’s assertion that the work in question constituted an emergency situation. Even if it is deemed to have been an emergency situation, the Organization maintains arbitral precedence requires that the Carrier make a reasonable effort to call and assign the most senior employee. The Organization relies upon numerous awards involving the parties which held that the Carrier has a contractual obligation to at least make an effort to call and offer overtime to employees on the basis of seniority.
The Carrier argues the overtime work at issue was indeed an emergency situation and that the Agreement gives the Carrier latitude to select the closest most qualified employee for the assignment. Rule 25(b) provides:
(b) PREFERENCE FOR OVERTIME - Employees of gang with designated limits will have preference to casual overtime in connection with work performed by such gang. Other employees will have preference to overtime in connection with the work projects performed by such employees. Overtime in connection with emergencies will be
Additionally, the Carrier contends track inspectors such as the Claimant and Melin, have designated areas of responsibility. The Newark District Employee Roster shows that Melin was assigned to the area between Mileposts 14 and 70 on the Oakland Subdivision. The location of the disputed overtime work was at Milepost 55. Rule 18(k), provides:
(k) 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 40 hours of work that week; in all other cases by the regular employee. (emphasis added)
The Carrier also relies upon several Third Division awards which address the issue of regular employees having priority. In particular, Third Division Award No. 40405, “establish(es) that overtime work is not assigned according to strict seniority guidelines but rather to the employee who regularly performs the work.” The Organization argues this position reverses a position the Carrier took in 2015. At that time, the Carrier asserted Track Inspectors do not have assigned “work limits” but rather can be use wherever inspections become necessary.
The Board has reviewed the on-property record and awards cited by each party. Seniority is a right earned by employees over time. Without seniority rights there is little motivation for employees to stay with an employer over time. These rights entitle employees to certain benefits such as priority in overtime situations. Third Division, Award 105 held “seniority rights are one of the foundations of the Agreement as well as all agreements of similar character. Every reasonable interpretation giving recognition to the seniority rule should be given, especially when sufficient fitness and ability are admitted by the carrier and other circumstances or
exceptions as provided in the agreement do not intervene.” There is no dispute that the Claimant lacked the qualifications required to handle the incident.
Therefore, the Board finds the Carrier violated the Agreement when it failed to offer the disputed overtime work to the Claimant work on May 23, 2015. In so doing, the Claimant lost out on a monetary gain to which he is entitled. The Claimant shall be paid four (4) hours at his overtime rate of pay.
Claim sustained.
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 6th day of January 2021.