THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Claim Angelo Cocchiarella was regularly assigned (by bulletin) as Truck Driver on Section No. 26 with headquarters at Missoula, Montana. He had established and held seniority in that rank. He was assigned a work week extending from Monday through Friday (rest days were Saturdays and Sundays).
On Saturday, March 10, 1962, the Carrier called Section Foreman Harry Bergren of Section No. 26 ,to replace a broken rail on said section near Frenchtown, Montana. Foreman Bergren called four sectionmen to assist with said work but did not call or attempt to call the claimant to drive the truck assigned to his gang. Instead he operated the truck which was used to transport the men, tools and materials to and from the broken rail site.
Section Foreman Bergren, accompanied by the four sectionmen, departed from Missoula at 11:30 A. M. and returned thereto at 3:30 P. M.
The claimant was available, willing and fully-qualified to have performed the work of his position had he been called and given the opportunity to do so. The Agreement in effect between the two parties to this dispute dated April 1, 1952, together with supplements, amendments and interpretations thereto, is by reference made a part of this Statement of Facts.
CARRIER'S STATEMENT OF FACTS: Missoula, Montana, is located on the main line of the Northern Pacific Railway.
A freight yard is maintained in Missoula and .the approximate distance between the extremities of this yard is five miles.
A section crew is assigned to work in Missoula Yard. The complement of this section crew usually consists of:
Harry Bergren is assigned to .the position of foreman in charge of the section crew, working from 8:00 A. M. to 5:00 P. M., Monday through Friday. The section foreman is provided with an International 3/4-ton pickup truck. This is a single seat, three passenger truck with space available on the bed of the truck for additional riders. This truck is used by the :section foreman to transport himself and members of his crew.
Angelo Cocchiarella is assigned to a positionof truck driver in this section crew, working from 8:00 A. M. to 5:00 P. M., Monday through Friday. Angelo Cocchiarella is assigned to operate a 2'/z-ton Ford Truck, which truck is used to transport men and material.
On Saturday, March 10, 1962, Section Foreman Harry Bergren was called to assist in replacing a broken rail at MP 139, near Frenchtown, approximately 17 miles distant from Missoula. Mr. Bergren, with the use of the International pickup truck, transported four sectionmen from Missoula to MP 139 and assisted in replacing the rail, after which he returned to Missoula. Mr. Bergren departed from Misssoula at 11:30 A. M. on March 10, 1962 and returned at 3:30 P. M. on that date. No material was handled in the pickup truck from Missoula to MP 139.
Claim has been presented by Angelo Cocchiarella for payment of four hours computed at time and one-half rate on March 10, 1962 because of not having been called to transport the four sectionmen from Missoula to MP 139 and return, which claim has been declined.
OPINION OF BOARD: The Organization contends that Carrier violated the Agreement when on Saturday, March 10, 1962, it permitted a section foreman to perform the duties of a truck driver. They ask that the incumbent truck driver be allowed four (4) hours' pay at his time and one-half rate of pay.
On the date in question the section foreman transported men and/or men and materials in a 3/4 ton pickup to a point some 17 miles from Missoula to assist in replacing a broken rail. The Claimant is regularly assigned to the position of truck driver in this section crew, working 8:00 A. M. to 5:00 P. M. Monday through Friday. He is asigned to operate a 2'h ton Ford truck.
The pickup driven ~by the section foreman is regularly assigned to him. The Employer assert that they agreed with Carrier that the section foreman could use the pickup to transport men within the Missoula Yard. The Carrier states that the section foreman regularly used the pickup to transport men and materials within and without of the Missoula Yard.
We are concerned here with a general Scope Rule. Rule 30 (g) is a specific rule and would take precedence over any general rules.
Award 14160 (Schmertz) clearly analyzes the intent of rules identical to Rule 30 (g).
In the instant dispute we are confronted with assertions and counter assertions but find no probative evidence. The awards of this Board are clear and the Claimant is entitled to a sustaining award if it can be shown that he alone performed the work in qnestion during his assignment. The Employes must bear the burden of proving their case.
Without sufficient evidence upon which to base a determination of the issue we must dismiss the claim.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; anal