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.
The claim at bar is based on undisputed facts. On May 22, 2000, an employee of Railroad Refrigerated Services (RRS) began pre-tripping cars at Birmingham, Alabama. Additionally, when Lead Refrigeration Mechanic Johnson was on vacation, a second RRS employee came on the property and pre-tripped cars for the Carrier.
The Organization alleges that the Carrier has violated Rule 16 and Rule 35. Rule 35 states that the "work on mechanical refrigeration equipment is the work of the Carmen's craft." Rule 16 states in pertinent part that:
The Organization alleges that the Claimant filed written application at Spokane to transfer to Birmingham to perform work that belongs exclusively to the craft under the Agreement. In denying the transfer and permitting RRS employees foreign to the Agreement to pre-trip cars, the Carrier violated the Agreement.
The Board notes that it is the Organization that must establish the proof that the Claimant is due compensation for alleged Carrier violation of the Agreement. With regard to this claim, the Organization submitted two statements from Carmen Form 1 Award No. 13836
Johnson and Jones that the disputed work was "the exclusive work of Western Fruit Express employees." The Carrier responded with the Superintendent denying the claim because:
The Board finds no additional facts presented by the Organization to dispute the historical use of contractors "during shortages".
Similarly, the Organization's claim asserts that Rule 16 was violated "by not allowing Claimant to transfer to Birmingham to perform the work." The Organization argues that the Claimant made a proper request to perform pretripping of cars at Birmingham and was denied. The burden of proof for this assertion lies with the Organization. The Carrier responded on property that:
The Board has reviewed the evidence and Rules at bar. The Claimant's "written request" does not demonstrate a properly filed written application to transfer to work at Birmingham. Nor is there any proof by the Organization that Rule 16(b) was violated, particularly since the language provides preference over new employees. The Board finds no evidence of new hires, nor does it find sufficient probative evidence to support the Organization's arguments to prove Carman Dickinson to be a proper Claimant.
We find that the Organization failed in its burden of proof: Rule 16 is misplaced and not shown to mandate the Carrier to allow a furloughed employee at Form 1 Award No. 13836
Spokane to work at Birmingham. The Claimant's written request is not proven to be a request to work at Birmingham. The trip reports fail to document work performed by contractors versus work performed by employees or to explicitly show what work was performed. The Organization provided evidence of exclusivity which was rejected by the Superintendent. There is no further showing that the Superintendent was wrong; that the Carrier did not historically use contractors for pre-tripping during shortages.
The Board has carefully considered the extensive Award support presented by the parties, including Public Law Board 5503 and Dissent; Public Law Board No. 6414, Award No. 1 and Dissent; Third Division Awards 29068, 20228, 18331. Each differs from these circumstances in significant aspects. With the state of this record, the Board is unable to find the Carrier has violated the Agreement. The Board would not even be able to conclude that had the Carrier violated the Agreement, the Claimant with seniority in Spokane Washington, is a proper Claimant for work in Birmingham, Alabama. The claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
It is respectfully submitted that the Majority failed to recognize documents submitted by the Employees establishing certain facts supporting the Organization's position in this case.
In review of the erroneous Award, we find the Majority based it's finding on the Employees alleged failure of not proving all elements of its claim. The Employees respectfully disagree with this analysis.
The Majority contends on Page 3 of the Award; ."The Board finds no additional facts presented by the Organization to dispute the historical use of contractors during shortages." This is not supported by the record in this case. In the Organization's initial claim of July 27, 2000, (Employees' Exhibit A) statements from two Birmingham WFE Carmen fully substantiated the fact that since the establishment of Carman positions at Birmingham in 1985, no one but WFE Carmen ever performed work at the facility. The Majority then states; "there is no further showing that the Superintendent was wrong." Once again,. the record does not support such a position. The Organization pointed to correspondence of record (Employees' Exhibit S, Page 4) wherein the Carrier stated in another case; "The first time that a contractor was used to perform pre-tripping of cars at Birmingham was on May 22, 2000 when Railroad Refrigerated Services (RRS) began performing some of this type of work." To say "The Boards finds no additional facts presented by the Organization to dispute the historical use of contractors during shortages" is simply not supported by the record in this case. The Organization has firmly and indisputably shown that no one but WFE Carmen has ever performed work at Birmingham. We have effectively rebutted the Carrier's wholly unsubstantiated allegation that they have historically used contractors during shortages at Birmingham. It is the Carrier that has relied on bare assertion, not the Organization. When the Carrier did begin using contractors for the first time on May 22, 2000, the Organization promptly filed claim resulting in this dispute.
Furthermore, we also respectively disagree with the Majority's contention that "The trip reports fail to document work performed by contractors versus work performed by employees or to explicitly show what work was performed." The record in this dispute is replete with literally hundreds of pages of documentation of what work was performed on which freight cars. There can be no doubt what work was performed by the contractors.
Based on the above, the Employees are compelled to vigorously dissent to the findings of this Award, finding it void of any precedential value whatsoever.