NATIONAL RAILROAD ADJUSTMFCIT 130APO
THIRD DIVISTON Docket Number MW-19550
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Louisville and Nashville Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that;
(1) The Carrier violated the Agreement when it used Construction
Supervisor L. J. Smith instead of J. E. Spruell to perform service as a foreman on each work day dur
both dates inclusive (System File 1-12/1:-304-18).
(2) Mr. J. E. Spruell be allowed one hundred seventy-six (176)
hours of pay at the foreman's straight time rate and forty-seven and one-half
(47-1/2) hours of pay at the foreman's time and one-half rate because of the
violation referred to in Part (1) hereof.
OPINION OF BOARD: A work train, with three Track Sub-department machines
(with MW operators) was engaged in picking up scrap rail
and other track scrap between Mile Post 359 and Mile Post 405. The machine
operators -- all of whom were qualified to work without supervision -- were
instructed by the Assistant Division Engineer and Roadmaster to clear the right
of way of all scrap. Mr. L. J. Smith, Supervisor of Construction, was with the
work train most of the time. MW alleges that Smith was acting in the capacity
of Foreman in violation of the Agreement. Carrier denied the allegation.
To prevail MW bore the burden of proving by convincing substantial
evidence of probative value that Smith was -de facto performing the duties of
a Foreman's position. The evidence of record does not satisfy the burden.
Consequently, we are compelled to dismiss the claim for failure of proof.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
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; and
Award Number 19864 Page 2
Docket Number MW-19550
That the claim must be dismissed for failure of. proof-
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST
Executive Secretary
Dated at Chicago, Illinois, this 27th day of July 1973,