Form 1

Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40586
Docket No. SG-40590
10-3-NRAB-00003-080125
The Third Division consisted of the regular members and in addition Referee
Margo R. Newman when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
“Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Union Pacific Railroad:
Claim on behalf of D. W. Johnson, for 216 hours at his straight time
rate and for all overtime lost, account Carrier violated the current
Signalmen’s Agreement, particularly Rule 26, when it failed to
utilize the Claimant to relieve an open maintenance position starting
on September 25, 2006 and continuing until the incumbent returns
to his position causing a loss of work opportunity for the Claimant.
Carrier’s File No. 1462733. General Chairman’s File No. S-26-802.
BRS File Case No. 13818-UP.”
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act,
as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Form 1
Page 2
Award No. 40586
Docket No. SG-40590
10-3-NRAB-00003-080125
Parties to said dispute were given due notice of hearing thereon.
The Claimant is a Signalman on a construction Signal Gang who was fully
employed during the claim period. This dispute involves the Signal Maintainer
position occupied by employee Moon after he left on a Medical Leave of Absence
(MLOA) around August 4, 2006. That position was advertised as temporary under
Rule 51 and assigned to employee Neel, who occupied it between August 18 and
September 18, 2006, when he bid off to another position. Thereafter, it was
advertised again on September 28 and October 13, with no bids received, and
eventually was assigned to employee Whitley as a result of a bid effective October
27, 2006. Whitley held the position temporarily at the time of the processing of the
instant claim.
The following language of Rules 26 and 51 is relied upon by the parties in
support of their respective positions in this case.
“RULE 26 - RELIEVING FOREMEN AND MAINTAINERS
When Signal Gang Foremen are off during vacation periods, or for
other reasons, they will be relieved by the Assistant Signal Foreman
or Lead Signalman assigned to that gang, if available. If not
available, they will be relieved by the senior qualified employee in
Class 1 assigned to the Signal Gang.
When Signal Maintainers or Signal Maintenance Foremen are off
for periods that exceed one week in duration, they will, if relieved,
be relieved by the Relief Signal Employee; and if not available, the
senior qualified employee of Class 1 assigned to the Signal or
Maintenance Gang.
The Carrier will make every effort to provide vacation relief on
Signal Maintainer positions when the incumbent is off duty longer
than one week.
Form 1
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Award No. 40586
Docket No. SG-40590
10-3-NRAB-00003-080125
RULE 51 - ADVERTISING POSITIONS FOR SENIORITY
CHOICE
. . . new positions and vacancies of more than thirty (30) calendar
days and less than six months’ duration will be advertised within the
above time limits as temporary. Except when temporary vacancy is
due to physical disability of employee, a position which has been
advertised as temporary and does in fact exceed six months, will be
re-advertised at the end of six months as permanent. . . .”
The Organization argues that under the clear language of Rule 26, the
Carrier is obligated to make every effort to relieve Maintainer positions where the
employee is off for a period in excess of one week, and that its failure to make any
effort in this case violates the Agreement, supporting the requested remedy, relying
upon Third Division Awards 12632, 16573, 19695, 20687 and 36834. The Carrier
contends that this case is governed by Rule 51, which applies to MLOAs, and not
Rule 26, which applies to vacation relief. It asserts that it complied with Rule 51 by
bulletining the position as temporary, and points to the Organization’s implicit
acknowledgement of that fact by commencing the claim on September 25, not
August 4, 2006 when Moon went on his MLOA. The Carrier argues that Rule 26
governs only if it chooses to relieve the position, and that the language of the second
paragraph is permissive, not obligatory, as found in Third Division Awards 36834
and 36940, and its “use best efforts” obligation in the last paragraph applies only to
vacation relief. It contends that the Organization failed to meet its burden to prove
a violation of the Agreement in this case, citing Third Division Awards 12821, 26257
and 31930.
A careful review of the record convinces the Board that the Organization
failed to meet its burden to prove a violation of the Agreement in this case. As
found in Third Division Award 36834, a case dealing with a vacation relief situation,
the phrase “if relieved” in the second paragraph of Rule 26 does not mandate that
relief be assigned, but gives the Carrier the option of providing vacation relief for
Maintainers who are off for periods exceeding one week. That case notes that the
final paragraph of Rule 26 requires the Carrier, in its exercise of managerial
discretion, to show some evidence that it made every effort to provide vacation relief
Form 1
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Award No. 40586
Docket No. SG-40590
10-3-NRAB-00003-080125
for Signal Maintainers. Third Division Award 36940 discusses what type of showing
of effort is required.
We are not convinced by the Carrier’s argument that Rule 26 does not apply
in this case because we are dealing with a MLOA and not an absence due to
vacation. The predicate to the Carrier’s obligation to relieve Signal Maintainers in
Rule 26, as noted in paragraph two, is that they “are off for periods that exceed one
week in duration.” As noted above, that obligation is discretionary, not mandatory,
but is not specifically limited to vacation absences. However, the language of the
final paragraph of Rule 26, which creates an affirmative obligation on the Carrier to
“make every effort” is specifically tied to providing vacation relief for Maintainers
off for longer than one week. It is clear that the compensation sought by the
Claimant in this case is not for vacation relief, but for relief for a Maintainer on a
MLOA. Even if we were to find that the Carrier was obliged to make every effort to
provide relief for Moon’s position, there appears to be no dispute that it acted
properly by bulletining Moon’s position as temporary under Rule 51. The record
reveals that the Carrier made repeated efforts to fill the position by bulletining it on
three consecutive occasions after Neel bid off of it, but was unsuccessful in obtaining
any bids until the assignment of Whitley on October 27, 2006. Thus, the
Organization failed to establish a violation of Rule 26 in the Carrier’s actions with
respect to the temporary Maintainer position created by Moon’s MLOA.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 27th day of August 2010.