PUBLIC LAW BOARD NO. 7101
(Brotherhood of Maintenance of Way Employes
PARTIES TO THE DISPUTE:
(and
(
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) The Agreement was violated when the Carrier failed to call
regularly assigned Gang 3627 employes M. Farley, E. Scott, G.
Jackson and M. Taylor for overtime service (replacing rail) on the
Geneva Subdivision on March 15, 2003 and instead assigned extra
employees to perform said work (System File UPSW2039T/1364772 CNW)
(2) As a consequence of the violation referred to in Part (1) above,
Claimants M. Farley, E. Scott, G. Jackson and M. Taylor shall
now each be compensated for twelve (12) hours of pay at their
respective time and one-half rates of pay.
The Carrier has declined this claim."
FINDINGS:
The Board, upon consideration of the entire record and all of the evidence,
finds that the parties are Carrier and Employee within the meaning of the Railway
Labor Act, as amended; that this Board is duly constituted by Agreement; this
Board has jurisdiction over the dispute involved herein; and that the parties were
given due notice of the Hearing held.
Claimant M. Farley, E. Scott, G. Jackson, and M. Taylor have established
and hold seniority within the Maintenance of Way and Structures Department. On
the date in question, Claimants were regularly assigned to Gang 3627. The
Organization contends that on March 15, 2003, the Carrier allegedly assigned 13
employees to assist Gangs 3500 and 3504 to replace rail on the Carrier's Geneva
Subdivision. Each of the 13 extra employees worked a total of 12 hours at the
` Page 2 PLB 7101
Case No. 4
overtime rate. It is uncontested that Claimants were available for duty on the Claim
date, fully qualified and willing to perform the relevant work, but were not given the
opportunity by the Carrier.
The Organization submitted a Claim contending that the Carrier had
violated the Agreement when the Carrier did not select Claimants to work on
March 15 to aid in the replacement of the rail. According to the Organization, it
was improper to assign the extra employees when Claimants were interested in the
work and should have been called. As a result of this alleged violation, the
Chairman requests that Claimants be compensated for 12 hours of work at their
respective overtime rates.
Conversely, the Carrier takes the position that the Organization cannot meet
its burden of proof in this matter. The Carrier contends that pursuant to Rule 23L,
Claimants were not entitled to said work. According to the Carrier, it is
uncontested that the Gangs 3500 and 3504 were regularly assigned to the work at
issue. Claimants were assigned to Gang 3627. Rule 23L mandates that the
employees regularly assigned to the work shall therefore be assigned the extra work.
In this case, the Gangs 3500 and 3504 were regularly assigned to the work in
question and therefore, the work was properly assigned to these Gangs and no
remedy is appropriate.
The language of Rule 23L is as follows:
Work on unassigned days - Where work is required to be performed on a
day which is not part of any assignment, it may be performed by an available
extra or unassigned employee who shall otherwise not have 40 hours of work
that week; in all other cases by the regular employee.
In the instant case, this Board cannot find that the Organization has been
able to meet its burden of proof to show that Gangs 3500 and 3504 were not the
regularly assigned employees. Therefore, the work was properly assigned to those
Gangs. Other referees have similarly held:
... From the Rule, it is clear that overtime is not assigned in
accordance with strict seniority guidelines, but who is doing the work
on a regular basis on the assigned work days. This is supported by
Third Division Awards 28500, 29097, 29795.
Third Division Award No. 31294 (Hicks, Referee)
Thus, after a review of all the evidence, there has been no showing that the
Carrier erred when it did not select Claimants to replace rail on March 15, 2003.
The Claim is denied.
x
Page 3 PLB 7101
Case No. 4
AWARD
Claim denied.
" Steven M. Bierig
airperson and Neutral Member
t
7
Dominic Ring Roy obinson
Carrier Membe Org nization Member
Dated at Chicago, Illinois this
2-
y day of j 2009.
