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, on September 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20, 2013, Carrier offered preference to and assigned Foreman T. Stanton to fill a temporary assistant foreman-flagging vacancy on the Cincinnati Terminal Seniority District (System File 161170513/2013-152483 CSX).
As a consequence of the violation referred to in Part 1 above, Claimant R. Talbott shall now be compensated for eight (8) hours at the applicable straight time rate of pay for each day ofthe violation as well as forty (40) hours' overtime and eight (8) hours' double time.

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 ofthe 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 ofthe hearing held.

The Organization filed this claim asserting that the Carrier used a Foreman to fill a temporary flagging vacancy in violation of Question and Answer 26 to the parties' May 9, 2007 Memorandum ofAgreement. As we noted in Award No. 267, Question and Answer 26 prohibits the Carrier from

PUBLIC LAW BOARD NO. 7163

AWARD NO. 270

PAGE2

using a Foreman to fill flagging positions which are at the Assistant Foreman rate of pay, i.e., stepping down. The has denied the work performed was flagging, arguing Foreman Stanton was serving as an Employee in Charge, protecting employees and equipment on the track.

Regardless of whether or not this work constituted flagging (an issue that this Board urges the parties to resolve through negotiation), the Carrier has argued that Claimant was neither qualified nor available to perform this work. The Carrier has documented this assertion with a statement from Roadmaster Burris, stating that Claimant "was not qualified on the territory." We have issued several Awards (particularly 166, 186 and 199) holding that Rule 3, Section 4(a) requires an employee to be both qualified and available to be given consideration for a temporary vacancy. We do not find that the Organization has met its burden ofproving that Claimant has satisfied both of these requirements. We cannot, therefore, find that the Agreement was violated.

AWARD: Claim denied.

Andrew Mulford Employee Member

Dated: -1-/9-/18----- Arlington Heights, Illinois

Katrina Donovan Carrier Member