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NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4370
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILROAD COMPANY
AWARD NO. 39
Case No. 39
STATEMENT OF CLAIM
1. The Carrier violated the provisions of the
current agreement when, on August 18, 19, 1990, it failed
to call Section Foreman Mr. Charles Lamorie and fellow
workers Messrs. David Rivera, Fred Sanchez, Fred Aranda,
and Leon Guttierez.
2. The Carrier shall now be required to compensate
each Claimant at their respective overtime rate in the
amount equal to eighteen hours overtime.
F I N D I N G S
On August 18, 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.
L43-7o 3q
Except in one respect, this Claim is identical to that
reviewed in Award No. 38. Whether or not the Claimants (other than
the Foreman) had provided the Carrier with their telephone numbers
is not clearly established. The parties subsequently remedied the
situation by undertaking to provide and receive telephone numbers
of all employes. Under this situation, further remedy is not
appropriate.
As to the Foreman, he was on vacation in the week in which the
Saturday-Sunday derailment occurred. The Carrier asserts that he
had been contacted on Friday on another matter and had said "not to
bother him on his vacation". It is reasonable to assume that the
rest days following the work days of an employe's vacation are part
of the vacation period and that the employe is not available for
call. Third Division Award No. 29039 stated:
Carrier has taken the position that an employee's
vacation extends through the two rest days after the
vacation period and consequently has not disturbed -
employees for work on these days. The Board agrees with
Carrier in this regard.
A conclusion indentical to that in Award No. 38 is warranted.
A W A R D
Claim denied as to the Foreman. Claim dismissed as to the
other employes.
HERBERT L. MARX, Jr., Neutral Referee
NEW YORK, NY
DATED: October 30, 1990
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