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 and refused
to assign or allow Gang 4904 Foreman J. Bagley to perform
overtime service in connection with his gang working on a bridge
at Mile Post 78.62 near Grove, Kansas on August 15, 2003 (System
File W-0335-180/1383479)
(2) As a consequence of the violation referred to in Part (1) above,
Claimant J. Bagley shall be ... be allowed compensation equal to
the amount he would have received absent the violation of the
Agreement. That is, Claimant Bagley must be allowed eleven (11)
hours pay at his respective overtime rate of pay and per-diem for
the days of August 15, 16, and 17, 2003 as compensation for this
violation of the Agreement.
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 J. Bagley has established and holds seniority as a Group 1 Steel
Erection Foreman on the Eastern District dating from May 11, 1992. He was
regularly assigned as such on Gang 4902 when the instant dispute arose. Gang 4902
Page 2 PLB 7101
Case No. 17
was regularly scheduled to work four ten hour days Monday through Thursday,
with Fridays, Saturdays and Sundays designated as rest days.
During the work week immediately preceding Friday, August 15, 2003, Gang
4902 worked with, and on the same schedule as, Gang 4904 repairing the bridge at
Mile Post 78.62 in Grove, Kansas. Early in the week, it was determined that both
Gangs 4902 and 4904 would be required to work overtime on what was normally
their rest day, Friday, August 15, 2003. Claimant, for whom the Carrier had
purchased a non-refundable ticket to return home on August 14, 2003, was given a
choice. He could either use the ticket or remain at the job site and work overtime.
According to the Carrier, he chose to return home.
The Organization submitted a Claim contending that the Carrier had
violated the Agreement when the Carrier did not allow Claimant to work overtime
on August 15, 2003. According to the Organization, because Claimant offered to
work overtime and change his return home to the following weekend, he should
have been granted the overtime on August 15, 2003. The Organization claims that
he was compelled to go home and therefore, lost out on the overtime. As a result of
this alleged violation, the Organization requests that Claimant be compensated for
11 hours of overtime.
Conversely, the Carrier takes the position that the Organization cannot meet
its burden of proof in this matter. The Carrier first contends that it acted within its
Management Rights to assign the overtime to another Foreman. In addition, it
contends that Claimant was given a choice to either work the overtime and forfeit
his ticket home or to return home. He chose to return home. While Claimant
indicated that he offered to change his ticket, work the overtime and go home the
following weekend, this is rebutted by the evidence presented by the Carrier.
Claimant was not entitled to said work. According to the Carrier, it acted properly
and no remedy is appropriate.
In the instant case, this Board cannot find that the Organization has been
able to meet its burden of proof to show that Claimant should have been assigned to
the overtime on August 15, 2003. Beyond its Management Rights argument, based
on the evidence, it does appear that Claimant, who had a non-refundable ticket, was
given a choice of either forfeiting his ticket and working the overtime, or to return
home. The evidence provided by the Carrier shows that Claimant chose to return
home. However, the Organization contends that based on Claimant's statement, he
chose to change his ticket and go home the following weekend. However, the
Organization contends that this request was denied by the Carrier and Claimant
was compelled to return home. Even under these circumstances, this creates a
disputeinfactsthatcannotberesolvedbytheReferee.
Page 3 PLB 7101
Case No. 17
Arbitrator Marx opined in a similar dispute of facts:
The Board is faced with virtually irreconcilable statements of fact -
whether the Extra Gang Laborers were simply performing routine
Sectionman work installing ties or whether they were used in
conjunction with System Gang work of a nature differing from
routine track maintenance. While names of such Extra Gang
Laborers were eventually provided, this provided no opportunity for
timely discussion of such conflicting assertions. In this circumstance,
the Board is without sufficient guidance to resolve the matter.
Third Division Award No. 29533 (Marx, Referee)
In the instant case, after a review of all the evidence, this Board finds that
there has been no sufficient showing that the Carrier erred when Claimant did not
work overtime on August 15, 2003. The Claim is denied.
Page 4 PLB 7101
Case No. 17
AWARD
Claim denied.
Steven
B
ierig
Steven M. Bierig
Chairperson and Neutral Member
- - y ~ -.v~_
Dominic Ring oy obinson
Carrier Member O anization Member
_.
Dated at Chicago, Illinois this 16`b day of April 2009.