BEFORE PUBLIC LAW BOARD NO. 7544
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
DIVISION - IBT RAIL CONFERENCE
and
SOO LINE RAILROAD COMPANY
Case No. 5
STATEMENT OF CAM:
"Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier failed to allow Mr. G. Hinkel to
exercise his seniority over junior employee D. Beadles working on the Merriam
Park Section Crew on January 7, 2008 through February 8, 2008 (System File C-
01-08-C060-01/8-00219-150).
2. As a consequence of the violation referred to in Part (1) above, Claimant G.
Hinkel shall now be compensated `. . . for two hundred hours at the applicable
Laborer's rate f pay of $17.56 per hour and for all other benefits to which entitled,
when the Carrier improperly denied claimant the opportunity to work as a Laborer
on the Merriam Park Section from January 7 through February 8, 2008. "'
FINDINGS:
The Organization filed the instant claim on behalf of the Claimant, alleging that
the Carrier violated the parties' Agreement when it failed to allow the Claimant to
exercise his seniority to a Laborer's position on the Merriam Park Section Crew from
January 7 through February 8, 2008, and instead allowed a junior employee to fill this
position. The Carrier denied the claim.
The Organization contends that the instant claim should be sustained in its entirety
because the Carrier violated the Agreement when it utilized a junior employee instead of
the senior Claimant to fill a short-term laborer vacancy, because the Carrier failed to
allow the Claimant a reasonable period of time to respond to Staffing Services and failed
to inform the Claimant of what other positions were available to him when he did contact
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Staffing Services, because the Carrier's decision to ignore the Claimant's superior
seniority and assign a junior employee to the disputed laborer position violated the
Agreement and deprived the Claimant of valuable seniority rights and monetary benefits,
and because the Carrier's defenses are without merit. The Carrier contends that the
instant claim should be denied in its entirety because the Organization has failed to meet
its burden of proof, because the Claimant failed to make a proper request under Rule 8(c)
to be considered for the assignment in question and he therefore lost no work
opportunity, because the Organization failed to provide any evidence to support its claim
or identify any rule that obligates the Carrier to call the Claimant, and because the
requested remedy is excessive and attempts to impose a penalty that is not provided by
Agreement.
The parties being unable to resolve their dispute, this matter came before this
Board.
This Board has reviewed the record in this case, and we find that there is
insufficient evidence that the Claimant made any proper request to displace, nor did he
express any desire to displace, another employee. Rule 8(c) states the following:
Employees affected by force reduction, who are displaced
in the exercise of seniority, if they desire to exercise their
seniority, must, unless on leave of absence in accordance
with the provisions of Paragraphs (a) and (b) of Rule 17, do so
by performing actual work in the position within thirty-five (35)
calendar days after being laid off or displaced, otherwise they
cannot exercise seniority except as provided for in Rules 8(b) and
8(c). Employees will, when consistent to do so, be notified by
the proper officer of the company when other employees have
indicated their desire to displace them.
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There is no evidence of the Claimant's attempt to contact the Carrier to indicate
that he wanted to displace.
It is fundamental that the Organization bears the burden of proof in these types of
cases. There is no evidence of any request on the part of the Claimant. The Carrier
called and he was not available. Consequently, this Board has no choice but to deny the
claim.
AWARD
:
The claim is denied.
CARRIER MEMBER
DATED:
3
,. PE~ MEYERS
Neutral Member
J) cit
ORGANIZATION MEMBER
DATED: