Brotherhood of Maintenance of Way ) Employes Division, IBT Rail Conference )
VS.
) Case No. 113 Award No. 113 CSX Transportation, Inc. )
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
I . The Agreement was violated when the Carrier assigned junior employe
G. Perry, instead of Claimant E. Downey, to perform overtime track
repair service on April 16, 17, 18, 24, 30 and May I and 7, 2010 (System
File 63180401012010-071436).
2. As a consequence of the violated referred to in Part (l) above, Claimant
E. Downey shall now be paid for a total of seventy-eight (78) hours at the
overtime rate of pay."
[BMWE Submission at I]
Findings:
Public Law Board No. 7163, upon the whole record and all the evidence, finds that (1) the parties
to this dispute are Carrier and Employes within the meaning of the Railway Labor Act as
amended, (2) the Board has jurisdiction over this dispute, and (3) the parties to the dispute were
accorded due notice of the hearing and participated in this proceeding.
This claim was timely presented by the Organization and responded to by the Carrier at all stages
of processing including conference. With the unresolved claim handled in the customary and
usual manner, the record established by the parties is now before the Board for adjudication.
According to the Organization the Carrier violated Rules 1, 3 and 17 when it failed to call and/or
offer overtime work to the senior employee (Claimant) thereby allowing an improper assignment
to a junior employee. The work involved rail repairs between Mile Post CAB 0.0 and Mile Post
CAB 1 19.00 on the Rivanna Subdivision in the Richmond Seniority District on the Central East
Service Lane Work Territory.
Rule 17 accords preference for this overtime to Claimant, BMWE argues, because he ordinarily
performs these tasks as part of his regular duties. Rule 17 Section 1(b) states that when
employees are needed for overtime within a designated territory the employees within that
territory are offered and/or called in order of their seniority. Since the work was performed
outside the normal tour of duty and was not a continuation of the day's work, Claimant receives
preference for it.
LB NO. 7163
AWARD 113
Claimant's written statement, attached to the Organization's appeal of the claim denial, confirms
that lie did notify the Roadmaster he was available and refutes the Roadmaster's email that
Claimant did not step forward for this work opportunity.
13M WE asserts that its prima facie showing of numerous rules violations was not countered with
any probative evidence by the Carrier. For example the Carrier does not identify any dates)
when the Roadmaster informed employees of this work and it failed to submit documents - -
telephone records, email correspondence or written notes -- to support its position that the
Roadmaster offered the overtime to Claimant. In the absence of such documents the only
conclusion is that the Roadmaster did not notify or contact Claimant.
The Carrier denied the claim stating that the Roadmaster informed Claimant and other employees
of the work opportunity but the Claimant never responded. The Carrier has no record of
Claimant's "phantom" statement where he allegedly requested the work but was informed he did
not have the qualifications. The Organization's assertions, without more, do not satisfy its burden
of proof and fail to establish the claim.
In the Board's view, the disposition of this claim centers on the Claimant's written statement
wherein lye asserts that he notified the Roadhnaster of his availability for this overtime work as
witnessed by four employee signatures on the statement. The Carrier asserts that the "phantom"
statement was not attached to any document it received in claim processing whereas the
Organization asserts it was attached to its appeal of the claim denial.
The text of the Organization's appeal to the claim denial does not identify any written statement
by Claimant as attached to or enclosed with the appeal. The absence of any reference to the
Claimant's statement in the text of the appeal is not construed favorably for the Organization.
The Claimant's statement is identified for the first time in the text of the Organization's response
to the Carrier's denial of BM WE's appeal. Even if accepted as part of the on-property exchange
of documents and showing that Claimant placed the Roadmaster on notice of his availability, the
statement is not supportive of the claim.
Specifically, Claimant states:
I did ask Roadmaster Ostrowsky if I could work. Mr. Ostrowsky said 1 could not
work because I was not qualified to get a 704-707 work authority. This is not my
fault! Get me qualified?
The Board construes Claimant's response as recognition that he was not qualified for the
overtime work. Since Claimant was not qualified the claim is denied.
