Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10765
SECOND DIVISION Docket No. 10353-T
2-DM&IR-CM-'86
The Second Division consisted of the regular members and in
addition Referee T. Page Sharp when award was rendered.
( Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
( Duluth, Missabe and Iron Range Railway Company
Dispute: Claim of Employes:
1. That the DM&IR Railway Company violated Rules 29(a), 57, and 71
of our Current Agreement when they assigned laborers to perform
inspection of Car No. DM&IR 52052 at Proctor Yard.
2. That, accordingly, The Duluth, Missabe and Iron Range Railway
Company be ordered to compensate Carman A. 0. Aarak in the amount
of four (4) hours pay for his rate and class for November 1, 1982.
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 employes 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.
Claimant, a Carman, filed a claim with Carrier claiming pay for cleaning
work done by a Carrier Laborer. The first claim stated:
"Carrier assigned 4 laborer (sic) to clean brake rigging
on B.O. D.M. & I.R. Car #52052 Procter Yard Track 2F
11-1-82 on the 7:00 AM to 3:30 PM shift.
Violation of Rules 29, 57 & 71."
The Carrier answered this claim on the grounds that the cleaning of cars,
here the cleaning of pellets from around the wheels, had characteristically
been done by Laborers and was not Carmen's work.
At the second step of the grievance process, the Organization changed the
claim to encompass the inspection of the car. The letter from the
Organization on November 17, 1982 contained this section:
Form 1
Page 2
Award No. 10765
Docket No. 10353-T
2-DM&IR-CM-'86
"Said car had been bad ordered for inoperative brakes.
We are of the opinion that the laborer made the repair
when he removed the rock and other material from the
brake rigging. The car was then okayed by the Foreman,
and allowed the car back in service."
The Carrier again answered the claim on the basis of the contention that the
Laborer had not done Carman's work in the cleaning process.
When the case progressed to this Board, it contained the claim as now
stated. The Firemen and Oilers intervened on the limited basis that the job
of cleaning pellets from around the wheels of cars has been Firemen and Oilers
work.
In its Submission to this Board the Organization states:
"The Carrier during the on-property handling has taken
the position that laborers have cleaned the decks on
car in the past and that the carmen do not have exclusive
rights to the work in question. But the Carrier is
missing the whole point of the claim or attempting to
ignore it. The claim is for inspecting Car No. DM&IR 52052
which was in a bad order status for inoperative air brakes.
The only way this car could be properly released is by
having it properly inspected and then corrective measures
taken."
Assuming arguendo that the claim before us is proper, there is not any
evidence in the record that substantiates the fact that the Laborers inspected
the car. The letter of November 17, cited above, indicates that a Foreman
released the car. The claim, as accepted arguendo, explicitly states that
Laborers inspected the car.
Assuming without deciding that the claim before us is proper, we find that
the burden of proof of substantiating this claim has not been met. It is the
duty of the claiming party to carry the burden of proof and when it does not
meet this burden the claim must be denied.
A W A R D
Claim denied.
Attest:
Nancy J. D e Executive Secretary
Dated at Chicago, Illinois this 5th day of March 1986.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division