PUBLIC LAW BOARD N0. 1838
Award No. 36
Carrier File MW-WI-77-22
Parties Brotherhood of Maintenance of Way Employees
to and
Dispute Norfolk and Western Railway Company
Statement
of Claim: Claimant
R.
G. Looney requests pay for all overtime made
by employes of Speno Ballast Cleaning Machine Gang
during June and July, 1977, account not being
furnished a bulletin of the cook's position on said gang
so that he could place a bid for the cook's position
in June, 1977.
Findings: The Board, after hearing upon the whole record and all evidence,
finds that the parties herein are Carrier and Employee within the meaning
of the Railway Labor Act, as amended, that this Board is duly constituted
by Agreement dated March 1, 1976, that it has, jurisdiction of the parties
and the subject matter, and that the parties were given due notice of
the hearing held.
The General Chairman filed the instant claim by letter of August 24,
1977, stating:
"We have been informed that during June and July,
1977, you used a machine operator to cook on
Speno Ballast Cleaning Machine when you had
R.
G. Looney on Devon section who had cooking
seniority rights.
This is one of the unpleasant experiences that
comes from not properly distributing bulletins.
This cooking position came out unassigned and
R. G. Looney should have been used. He would
have bid on the job if he had been given a
bulletin.
We are requesting that R. G. Looney be paid
the overtime that was made by machine operator
Doyle Johnson while cooking on Speno. This
time will show on time sheets which you have
on file in your office.
Our entire Agreement supports seniority, so
it is useless to cite any particular rule."
-2- Award No. 36 - /X 3 $?
Carrier asserts that the claim is so vague, indefinite and lacking
in specificity that it fails to state a cause of action upon which a
decision can be
reached; and
hence must be dismissed accordingly; that
Roadmaster J. H. Brown specifically asked Claimant if he desired to take
the position as cook and he declined to do so and that he was asked by
Roadmaster Brown on two separate occasions thereafter with the same
response. Until finally, on July 22, 1977, he agreed to take the
position if Roadmaster Brown would cut him off or release him when the
Speno left the Pocahontas Division. .
In addition Carrier asserts that the Organization failed to cite a
rule in support of their position. Awards in support of Carrier's
position were also cited.
The Board finds that there is merit to the instant claim. Here,
Carrier used an employee without seniority to perform the work of an
assigned position to which Claimant had seniority rights. Also, Claimant
was not given copy of the bulletin concerning the position in question.
Further, the Claimant denied the allegation of Roadmaster Brown. Roadmaster
Brown, in denying the claim under date of October 3, 1977, did not therein
assert that he had offered the job to Claimant and that Claimant had
refused. A belated assertion not contemporary with the claim loses its
vitality and validity when, as here, denied and not thereafter substantiated.
Consequently, in the circumstances, this claim will be sustained limited
to this case.
Award: Sustained as per findings.
Order: Carrier is directed to make this Award within thirty (30)
days of date of issuance shown below.
A. D. Arnett, Employee Member G. C. Edwards, Carrier Member
Arthur T. Van Wart, Chairman
and Neutral Member
Issued at Salem, New Jersey, September 30, 1980.