d
PUBLIC LAW BOARD NO. 7201
CASE NO. 5
(Brotherhood of Maintenance of Way Employes
PARTIES TO THE DISPUTE:
(and
(
(Soo Line Railroad Company (former Chicago,
Milwaukee, St. Paul and Pacific Railroad
Company)
"Claim of the System Committee of the Brotherhood
that:
(1) The Carrier violated the Agreement when it failed and refused to
allow Group 2 Machine Operator J. L. Pedro to displace junior
employe J. Everhart on August 24 and 27, 2001 (System File C31-01-C060-19/8-00219-085 CMP).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant J. L. Pedro shall now be compensated for a total of
sixteen (16) hours' pay at the applicable straight time rate of
pay,»
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. L. Pedro has established and holds seniority as a Group 2
Machine Operator in the Engineering Services Equipment and Machine
Subdepartment, dating from September 16, 1992. On the dates giving rise to the
instant dispute, Claimant was regularly assigned to the position of Group 23
Machine Operator operating a slave tamper on a surfacing crew supervised by
Foreman J. Campbell. Employee J. Everhart has established and holds seniority as
a Group 2 Machine Operator. It is uncontested that Everhart is junior to Claimant.
d
Form 1 Case No. 5
Page 2 PLB 7201
On Thursday, August 23, 2001, Claimant was advised that he was being
displaced from his Machine Operator position by a senior employee effective at the
end of that work day. At that time, Claimant contacted the office of Senior Staffing
Representative G. Hugo to determine where he could immediately exercise his
seniority to continue earning his income. According to Claimant, Claimant
informed Mr. Hugo of his desire to displace a junior machine operator working on
the Latta Subdivision in Indiana, effective the following work day, Friday, August
24, 2001. Claimant contends that Mr. Hugo was uncertain as to whether that gang
was still working. Claimant was instructed to call back on the following day. When
Claimant did so, Mr. Hugo indicated that he would call Claimant back with the
information, but did not return the call. When Claimant called back on Monday,
August 27, he was eventually told by Mr. Hugo's assistant that he could bump the
following day, August 28. Claimant did eventually assume the position on the Latta
Subdivision on August 28.
According to the Organization, the Carrier violated the Agreement when it
denied Claimant the opportunity to bump to the position on the Latta Subdivision
on August 24 and August 27. He should have been given the opportunity to bump
as of August 24 and when he was not so allowed, lost 2 days of pay. Claimant was
the senior employee and was entitled to obtain the work in question. As a remedy,
the Organization claims that Claimant should be compensated for the 16 hours at
the applicable straight time rate for each day.
Conversely, the Carrier provided a statement from Mr. Hugo indicating that
Claimant contacted him on August 23, 2001 inquiring about his options to work for
a few days. Mr. Hugo stated that he advised Claimant of all junior employees
working and positions that would meet his request. Claimant wanted time to
consider his options. According to Mr. Hugo, Claimant called back on August 24,
2001 and again was advised of junior employees working and continued to consider
his options. Not once on either day did Claimant advise Mr. Hugo of his desire to
displace any employe including Mr. Everhart. According to the statement of Mr.
Hugo, Claimant simply could not make up his mind. According to the Carrier,
inasmuch as Claimant could not decide on a position, he was not entitled to a
displacement until Monday, August 27, 2001. Once decided, Claimant affirmatively
made his displacement for August 28, 2001. Local Chairman Gibbons was not
present during any of the conversations between Claimant and Mr. Hugo.
The Carrier takes the position that the Organization cannot meet its burden
of proof and that Claimant is not entitled to the work in question. According to the
Carrier, Claimant did not assert his displacement rights until August 28 when he
was granted the relevant position. Had he asserted this position earlier, he could
have been granted said position. Therefore, the Claim should be denied. The
Carrier stresses that the burden in this matter is on the Organization and the
Organization cannot meet that burden of proof. Further, there is an irreconcilable
Form 1 Case No. 5
Page 3 PLB 7201
dispute of fact in this case and this Board is therefore unable to resolve said dispute.
Thus, in the alternative, the matter must be dismissed.
After a review of all the relevant evidence, this Board finds that the
Organization has been unable to meet its burden of proof. The burden of proof in
this matter falls to the Organization to prove that Claimant should have been
awarded the position on the Latta Subdivision on August 24 and 27. It is clear that
the facts provided by Claimant and those provided by Mr. Hugo are directly
opposing to one another and thus, there is an irreconcilable dispute of fact. When
such a dispute occurs, the Board has no choice but to dismiss the matter. See Third
Division Awards 35855, 35497 and 33951. The Claim is dismissed.
The Claim is dismissed.
Form 1 Case No. 5
Page 4 PLB 7201
AWARD
Claim dismissed.
Digitally signed by Sieven Bierg
Steven
DN rnmStgven r'betig, o,
ou-Attomey-Arbitrator
Mediator,
B i e r i e
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Date: 2010.06.14 76:77:45-05'00'
Steven M. Bierig
Chairperson and Neutral Member
f
Bj ne Henderson Roy R binson
Ca rier Member Organ ation Member
Dated at Chicago, Illinois this 14th day of June 2010.