Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 44335

Docket No. 44287 17-3-NRAB-00003-170331

20-3-NRAB-00003-190624

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

PARTIES TO DISPUTE: (

(UNION PACIFIC RAILROAD COMPANY (former

Southern Pacific Western Lines)

STATEMENT OF CLAIM:

“Claim of the System Committee of the Brotherhood that:

1. The Agreement was violated when the Carrier assigned junior employe C. Palone to perform overtime work at Mile Post 370 near Cameron, California on October 16, 17, 20, 21 and 22, 2015 instead of assigning senior employe C. Rodriguez thereto (System File T-1505S- 922/1644798 SPW).

   
   

2. As a consequence of the violation referred to in Part (1) above, Claimant C. Rodriguez shall ‘... be compensated a total of six (6) hours overtime ten hours (10) double time and $120.47 per diem allowance on each for hours worked by said junior employees on the dates described above and because of the Agreement violations cited herein. ***’”

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 C. Rodriguez has established and maintains seniority in the Carriers’ Track Sub-department and was regularly assigned to his respective position during all times relevant to this dispute. On December 9, 2015, the Organization filed the instant claim on behalf of the Claimant asserting the Carrier violated the Agreement when it assigned overtime work on October 16, 17, 20, 21 and 22, 2015 to C. Palone who has less seniority than the Claimant. 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.

It is undisputed there was a mudslide at or near Mile Post 370 near Cameron, California which caused track damage and rail service interruptions. The disputed overtime work involved a rail repair and resurfacing project.

The Organization disputes the Carrier’s claim that the work was conducted under emergency circumstances. It contends the track remained in service and the overtime work took place days after the mudslide occurred. Even if the incident was an emergency, the Organization argues the Claimant was entitled to the overtime work based on the benefit of his seniority. Despite assertions to the contrary, the Organization maintains the Carrier made no attempt to contact and assign the work to the Claimant. Instead the Carrier used a junior employee. Based on arbitral precedent, the Organization maintains the Carrier has an obligation to make a reasonable attempt to contact employees according to seniority order. The Carrier failed to do so. The Organization disputes the Carrier’s assertion that Supervisor Travieso called and offered the Claimant the work overtime on the dates listed and that declined. It contends the Carrier needed to present backup (ie. phone records or call logs) for this affirmative defense. The Claimant denied he was contacted about the work.

The Organization maintains the Claimant is entitled to the requested remedy: six (6) hours at his overtime rate, ten (10) hours double time and $120.47 per diem

allowance on each date listed. It disputes the Carrier’s arguments that the Claimant is not entitled because he was working on the claimed dates. The Organization cites numerous awards that held a) full employment is an insufficient defense to a compensatory remedy and b) the Organization is free to name any claimant it chooses in an alleged Agreement violation.

The Carrier argues the claimed overtime work was performed in conjunction with an emergency situation as contemplated by Rule 25 (b) of the Agreement. The Carrier argues several Third Division Board awards have ruled that it has greater latitude in assignments of work during emergency situations. The Carrier also maintains the Claimant was contacted and declined the work. In support it presented the following written statement from Supervisor Travieso:

Cipriano Rodriguez was contacted first when mudslide occurred. Employee stated to me that he was un-available due to other arrangements he had where he was unable to make it. Therefore, another employee was called to come in to assist all surfacing gang forces that were involved in a emergency situation to get mainline back in service. At this time Mr. Palone was not assigned to gang 8071, I didn’t even have gang 8071. Mr. Palone was assigned to gang 9092 at this time.

The Carrier acknowledges Travieso’s statement conflicts with the Claimant’s assertion he was never contacted. It argues, however, previous Boards have held they were not in a position to resolve evidentiary conflicts in appellate situations. (Third Division, Award 37204). The Carrier also cites Third Division, Award 39613, in which the Board held “where the burden to prove specific facts is on the Organization, as it is here, factual conflicts are resolved in favor of the Carrier.”

There is no doubt seniority is one of the most important and valuable benefits earned by employees and which must be respected by the employer. As held in Third Division Award 43531 (which cites Third Division Award 20527, 10965 and 29164), when the Organization proves a claimant is more senior to the employee(s) called to perform the claimed overtime work, they are entitled to the work unless the

Agreement permits the Carrier to assign other employees. The Carrier bears the burden to prove the work was being performed on an emergency basis. When a Carrier successfully proves an emergency exists, the Board agrees it has greater latitude in calling employees for the repair work.

As previously mentioned, there is no dispute a mudslide occurred (the date on which it occurred is not mentioned in any of the on-property correspondence). There also can be no dispute that a mudslide fits the established definition of an emergency, “an unforeseen combination of circumstances that calls for immediate action.” (Third Division Awards 20527 and 10965) The claimed overtime work however, occurred on multiple days after the mudslide happened. The Carrier does not dispute the Organization’s assertion that the tracks remained in service on the dates listed in the claim. Having reviewed the entire record before us, the Board finds the claimed overtime work no longer constituted an emergency situation. Nor did the Carrier have the right to bypass the Claimant’s seniority rights.

The remaining question before this Board is whether the Claimant was contacted about the work as asserted by the Carrier. Travieso says he contacted the Claimant when the mudslide first occurred and that the Claimant said he was unavailable. The Board is not satisfied that Travieso’s statement proves the Claimant was contacted for each of the overtime days listed in the instant claim. We therefore find the Carrier violated the Agreement when it assigned the overtime work to an employee with less seniority than the Claimant.

The Board is then left with the question of remedy. The Organization requests that for each of the dates listed in the claim the Claimant should receive six (6) hours at his over-time rate, ten (10) hours at double time, plus $120.47 per diem allowance. The Carrier argues the Claimant is not entitled to the requested remedy because he was fully employed in his regular assignment during the disputed time period. The Carrier also argues the per diem allowance is only paid on dates when service is performed.

Time records for the Claimant during the disputed time period establishes he was paid the following:

During the same time period Palone was paid the following:

The Board finds the Claimant is entitled to fifteen and one-half hours (15.5) of overtime at one and one-half his regular rate of pay. The Claimant received more pay for work at his double time rate than Palone. He is therefore not entitled to any additional hours at his double time rate of pay. The Board can find no support for the Organization’s requested per diem allowance of $120.47 but finds the Claimant is entitled to the difference between what he received and what Palone was paid ($176.02).

AWARD

Claim sustained in accordance with the Findings.

ORDER

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.