BEFORE PUBLIC LAW BOARD NO. 7007
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
MASSACHUSETTS BAY COMMUTER RAILROAD
Case No. 4 6
STATEMENT QF CLAIM: "Claim of the System Committee of the Brotherhood that:.
1. The Carrier violated the current Agreement, specifically Rule 11- Overtime and
the "Overtime Protocol" when it failed to properly assign overtime on the claim
dates to the Claimant, I3. Considine.
2. For this violation the Organization is requesting that the Carrier be required to
compensate Claimant Considine 13 hours at his Assistant Foreman Flagman
overtime rate of pay due to a junior employee W. Bubanas working a position in
violation of the Rules cited."
FINDINGS:
The Organization filed the instant claim on behalf of the Claimant, alleging that
the Carrier violated the parties' Agreement when it assigned certain overtime work to a
,junior employee, rather than to the Claimant. The Carrier denied the claim.
The Organization contends that the instant claim should be sustained in its entirety
because the Rules require the Carrier to assign the overtime work in question to a
working Assistant Foreman from the roster, the Claimants who was qualified and
available to perform the work; because the Carrier ignored the Overtime rule and
longstanding callout procedure, instead asserting that the call was based on some
"Policy" that clearly does not exist; and because the Carrier should be held accountable
for ignoring Rule 11 and the "Overtime Protocol"while creating its own practice. The
Carrier contends that the instant claim should tie denied in its entirety because the
1
Organization has failed in its burden of establishing the essential elements of its claim,
and because there was no probative evidence that the Carrier violated any Agreement
Rule or established past practice.
The parties being unable to resole their dispute, this matter came before this
Board.
This Board has reviewed the record in this case, and we find that the Organization
has failed to meet its burden of proof that the Carrier violated an agreement when it failed
to assign the overtime at issue to the Claimant. Therefore, the claim must be denied.
The Organization tales the position that there is an Overtime Protocol procedure
that was agreed to by the parties. The Organization attaches to its submission a part of a
document that is entitled, "Overtime Callout: As Amended 6-14-Od. Regular Meeting
Lodge 201." This Board stresses that it is only part of a document and there are no
signatures on it.
In its response to the claim, the Carrier's Manager of Labor Relations states:
The Organization states that the Carrier and the Organization agreed to
adopt a callout procedure in 2004 that prohibited the South Side Flagging
Pool to back up the North Side or vice versa. I am unable to find any such
agreement or side letter that would support your position and point out that
the method of calling out flagging details, which the BMWiE has accepted
to date, has been the same since July 1, 2003. This policy clearly states that
when the North Side Flagging Pool is exhausted, the calls go to the South
Side Flagging Pool. Further, if both pools are exhausted, the call goes to
the Assistant Foreman of the Maintenance Crew of the territory. Finally, if
no employee is available in the territory, the call goes to the top of the
Assistant Foreman roster.
It is fundamental that if the Organization is relying on an agreement and the
Carrier denies that that agreement exists, the Organization has the burden of coming
forward with the entire agreement showing that it eras agreed to by the parties.
Since the
Organization has failed to come forward with the agreement on which it
is relying, this Board has no choice but to deny the claim. Therefore, the claim must be
denied.
AWARD:
The claim is denied
P&ERP. ME' YERS
Member
CAItItf ER ME MIBER
DARED: I 1 ~~-1 l 11
ORGANIZATION ME MBER
DATE, D: /4'/xV/f