PUBLIC LAW BOARD NO. 7163

PARTIES TO DISPUTE

) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION,

) INTERNATIONAL BROTHERHOOD OF TEAMSTERS

)

) CSX TRANSPORTATION, INC.

STATEMENT OF CLAIM:

The Agreement was violated when the Carrier assigned Track Inspector B. Gunter to perform overtime work on July 21, 2012 without calling and assigning the work to Claimant J. Roasario.
As a consequence of the violation referred to in Part I above, Claimant J. Rosario shall now be allowed four and one-half (4.5) hours at his appropriate time and one half rate of pay.

FINDINGS:

The Board, upon consideration of the entire record and all of the evidence, finds that the parties areCarrier and Employee within the meaning of the Railway Labor Act, as amended, that this Board is duly constituted by Agreement dated March 20, 2008, this Board has jurisdiction over the dispute involved herein, and that the parties were given due notice of the hearing held.

At the time of this claim, Claimant was regularly assigned as a Track Inspector and spent at least part of July 21, 2012 installing speed restriction signson the Erie West Subdivision. He went on duty that day at 6:30 am and worked until 10:30 pm. At 9:54 pm the Carrier called Track Inspector B. Gunter to perform overtime work to replace a missing warning sign for a temporary

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speed restriction at Mile Post QD 122 .9. It is undisputed that Gunter isjunior to Claimant as a Track Foreman. Consequen tly, the Organization argues Claimant should have been used to perform this service based upon his greater seniority.

The record before the Board establishes that Claimant was still on duty and being paid at the overtime rate at the time Gunter' s service was required. The Carrier explains it was unknown at the time how much longer Claimant would be working that day. It further asserts safety considerations required that the warning sign be replaced as soon as possible. It was not practical for this work to wait until Claimant completed the duties he was already performing. In support of its position, the Carrier cites Third Division Award 39307, involving these parties and reading, in pertinent part, as follows:

Oncethe Carrier hasproved thatthe Claimantswere workingelsewhere onovertime when the disputed emergency work was performed, the logical conclusion is thatthey could not have performed the track work at the derailment site at the same time. It therefore falls to the Organization to demonstrate that the Claimants were somehow available to perform the disputed work. The Organization failed todo so. Accordingly, the Board finds that the Carrier did not violate the Agreement by failing to call the Claimants to perform the disputed overtime service .

Wefind that Award 39307 is directly on point. Inasmuch as it involves the parties herein and thesame Agreement, thedoctrine of staredecisis dictates that wealso hold in thiscase that Claimant was unavailable to perform this overtime work. The Organization's argument goes no further than an assertion that Claimant should have been used because he was the senior employee. It acknowl edges that Claimant was still working at the time Gunter was called and does not establish that the Carrier would know for certain that Claimant would have been available to perform the work. The use of another qualified, but available, employee was not in violation of the Agreement, notwith standing the fact he had less seniority than Claimant.

April 2, 2015