Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44332
Docket No. 43932 16-3-NRAB-00003-160727
20-3-NRAB-00003-190620
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 Carrier violated the Agreement when it failed to bulletin the vacant water service foreman position on Gang 8089 headquartered in Eugene, Oregon beginning retroactively sixty (60) days from May 21, 2015 and continuing (System File AE-1510S-102/1628036 SPW).
As a consequence of the violation referred to in Part (1) above, the Carrier must now advertise the water service foreman position and Claimant T. Braniff must be compensated all difference in pay for all straight time and overtime hours worked by said gangs beginning sixty (60) days retroactive to May 21, 2015.”
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 Organization filed the instant claim on May 21, 2015 on behalf of T. Braniff (Claimant) who established and holds seniority within the Carrier’s Maintenance of Way Department. During the time in dispute the Claimant was regularly assigned as a truck driver headquartered in Eugene, Oregon. The Organization claims the Carrier failed to bulletin a vacant Water Service Sub- department foreman position on Gang 8089 in violation of 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 argues the Carrier failed to bulletin the disputed vacancy and instead allowed the work to be performed by employees from Gangs 8035 and 8037 in the Bridge and Building (B & B) Subdepartment, and from Gang 6893 who are headquartered outside of the Eastern District. During the time specified, the Claimant was working in a lower rated position and has not been allowed to perform the disputed work.
The Organization argues the disputed position is necessary to oversee tasks on an ongoing basis that take place for more than thirty (30) days. The work, the Organization asserts, includes set-up duties prior to fire season, maintenance during the season, and storage and/or repair of the equipment at the end of the fire season, which take up a majority of the year. The Organization argues the fire service water service cars cannot function without routine maintenance and inspection. The Organization submits a statement from the Claimant to establish the disputed work is being performed regularly by two employees who are not assigned to or working in the Water Service Sub-department job classification and who are headquartered outside of the Eastern District in Eugene, Oregon. In conclusion, the Organization maintains the Carrier failed to bulletin a vacancy as provided by Rule 10 which is a violation of the Agreement.
The Carrier maintains it no longer needs a full-time Water Service Foreman in Gang 8089. The work that was formerly performed by an employee who retired has
declined over the years beginning in 2012 when they reduced the number of fire cars in operation. The Carrier points out that Rule 10 provides, in part:
Rule 10 – Advertisements, Assignments and Cancellations provides, in part:
ADVERTISEMENTS – New positions and permanent vacancies will be advertised by telephonic system within 25 days previous to or 10 days following the establishment of the position or occurrence of permanent vacancy.
Temporary vacancies will be advertised by telephonic system within 25 previous to or 10 days after they occurs, except that vacancies of 30 days or less need not be advertised. (emphasis added)
Based on this language, the Carrier contends the Organization has the burden to establish the water service work was performed on a consistent basis for more than thirty days. The statement from the Claimant fails to meet that burden. It lacks specific dates, times and locations and therefore does not prove the work has been consistently performed by the B & B employees. Furthermore, the Carrier argues, there is not proof the Claimant is qualified to perform the disputed work.
The Board has reviewed the on-property record. It is well established that the Organization bears the burden to prove how the Agreement has been violated. The Organization has not met that burden in this case. The Claimant’s statement lacks specificity about when and where the work was performed. Nor does it establish that there was a consistent need that lasted more than thirty (30) days. The statement cannot be relied upon to prove the Carrier violated the Agreement. The Board, therefore, finds that the claim must be denied in its entirety.
Claim is 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 6th day of January 2021.