NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD N0. 4370
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD NO. 38
Case No. 38
STATEMENT OF CLAIM
1. The Carrier violated the provisions of the
current Agreement when on July 21 and 22, 1990 the
Carrier failed to call and assign overtime work to
Messrs. J. A. Samabrano and C. J. Ortiz, instead chose to
call junior employes to perform such overtime work.
2. The Carrier will now be required to compensate
each Claimant at their respective rate of pay, equal to
that of thirty-one (31) hours of overtime.
F I N D I N G S
On July 21, 1990, a derailment occurred. and employes were
called for overtime assignment in connection therewith. Employes
junior to the Claimants were called, and the Organization states
the Claimants should have been called under Rule 21 (d), which
states in pertinent part as follows:
Senior employes in their respective ranks and gangs
will, if available, be called or used to perform overtime
work.
~I3~o- 38
1
The Carrier contends that the Claimants were not called simply
because their telephone numbers were not on file, and they were not
listed in the local telephone directory. (Both Claimants live in
outlying communities.) The Claimants insist that their numbers
were available.
Neither the Claimants nor the Carrier can clearly demonstrate
the validity of their assertions. It appears that, shortly after
the claim was initiated, steps were taken to insure that a complete
list of telephone numbers became available. A repetition of this
controversy is thus avoidable.
There is no showing that there was any deliberate failure to
call the Claimants in favor of junior employees. Given the
conflict in factual assertions, the Board is unable to assign
responsibility or resolve the matter.
A W A R D
Claim dismissed.
6
HERBERT L. MARX, Jr., Neutral Referee
NEW YORK, NY
DATED: October 30, 1992