NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the
regular members and in
addition Referee Don J. Harr when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 16, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
NORFOLK AND WESTERN RAILWAY COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That the Agreement was violated and members of the regularly assigned wrecking crew damaged, when the Norfolk and Western
Railway Company called, formed and/or used an auxiliary wrecking
crew and outfit, for the performance of wrecking service in the rerailing of NKP Car, at a derailment in Princeton Yards. Princeton,
West Virginia, on January 2, 1968.
2. That accordingly, the Norfolk and Western Railway Coir:pany
be ordered to compensate Derrick Engineer D. B. Lilly, Car Repairer
G. B. Dehart and Helper Car Repairer W. G. Wolfe, regularly assigned
members of the Elmore Wrecking Crew, in the amount of a call of
two (2) hours and forty (40) minutes each, at the rate of titre and
one-half, for January 2, 1968, becau=. ~ of said violation and resultant
damage to Claimants.
EMPLOYES' STATEMENT OF FACTS: The Norfolk and Western
Railway Company, hereinafter referred to as the carrier, maintains at Elmore,
West Virginia, a point on carrier's line, on the New River Division, (formerly
VGN) a wrecking outfit and regularly assigned wrecking crew, of which
Carmen D. B. Lilly, G. B. Dehart and Helper Car Repairer W. G. Wolfe,
hereinafter referred to as claimants, were regularly assigned members, this
being the one and only wrecking crew so assigned on said New River Division.
On December 22, 1967, N&W Train Extra Tast with Engire No. 17.29,
reporting at 6:15 P. M., after traveling approximately thirty-five (35) miles
experienced a derailment in Princeton Yards, at Princeton, West Virginia, a
point also on said New River Division approximately 35 miles from 171rnore, to
which derailment the Elmore Wrecking Crew and Outfit were dispatched and
after rerailing one or more cars, on December 23, 1967, one (1) car, which
claimant member of the wrecking crew recorded and described as NKP 80036,
claim to your Board have also abandoned their position that !his car was
retracked at this time and place, thus altering the claim and removing it
from the jurisdiction of your board. It has further been shown that if the
incident had occurred as alleged, claimants would have no right to perform
work in another carman's seniority district. Also that claimants were not
monetarily damaged; therefore are not entitled to pecuniary damages.
The carrier respectfully requests that the claim be dismissed or denied
in its entirety.
FINDINGS: The Second Division of the Adjustment Board, upon the
whole
record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employe 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.
Parties to said dispute waived right
of appearance at hearing thereon.
By letter dated February 19, 1968, the Employes' Local Chairman instituted a Claim reading in part:
"This will serve as formal claim, for damages sustained by regularly assigned Elmore Wrecking Crew, on date of .lanuary 2, 1968,
due to non-.compliance with current Agreement, by Management, in the
calling and/or formation and utilization of auxiliary wroching crew
and outfit, for the performance of wrecking service at Princeton,
West Va., a point on the N&W Railway, (formerly VGN) approximately 35 miles from: the home terminal of said regularly wrecking;
outfit, in the rerailment of NKP Car No. 80036, with all duties performed by said auxiliary crew, thus depriving the one and only
wrecking crew, assigned to New River Division, and having serviced
such Division and territory, for many, many, years; of work to which
they were contractually entitled."
The Carrier contends that the Claim was amended upon appeal to the
Board since no specific car number was given.
From a careful review of the record we find that at all tjni~s, during the
handling on the property, the Employes contended that car NKP-80036 was
involved.
The Vice President-Personnel denied the Claim by letter dated February
21, 1969, as follows:
"We have no record of a car bearing the identification and number
NKP 80936 being derailed in Princeton or elsewhere on or near
January 2, 1968. Under the circumstances it must be assumed that
you have been misinformed in this instance.
Your attention is called to the many awards by all divisions of the
National Railroad Adjustment Board, wherein it has been definitely,
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positively, established that the burden of establishing facts sufficiently
that require or permit the allowance of a claim is upon him who
makes the claim."
We do not believe that the failure to name a specific car upon appeal
would be a fatal amendment of the Claim.
We must, however, find that the employes have failed to meet their burden
of proof. We find no probative evidence to support the Claim. This Board has
held on many occasion that the burden of proving the claim is on the claimant.
We will dismiss the Claim.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: E. A. Killeen
Executive Secretary
Dated at Chicago, Illinois, this 18th day of November, 1970.
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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