NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20538
Irwin M. Lieberman, Referee
(Brotherhood of Maintenance of ;day 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 and practices thereunder
when it used Foreman J. B. Loyd instead of Track Repairman T. Harris to
"watch track" from 8:00 P.M. on September 26, 1972 until 9:00 P.M. on
September 27, 1972 at DIP 310.2, Birmingham Division (System File 1-16/
E-X04-12 304).
(2) As a consequence of the aforesaid violation, Track Repairman T. Harris be allowed pay at the
9-26-72
3:00 P. M. to 11:00 P.M. --- 3 hrs. time and one-half
11:00 P. M. to 12:00 M --- 1 hr. double time
9-27-72
12:00 M to 7:00 A.M. --- 7 hrs. double time
7:00 A. M. to 4:00 P.m. --- difference between the
double time rate and the
straight-time rate
4:00 P.M. to 9:00 P.M. --- difference between the
double time rate and the
time and one-half rate.
OPINION OF BOARD: The dispute herein originated in the repair of track
September 26, 1973 following a derailment. After the
track was repaired the foreman elected to remain on duty to perform duties
as watchman, until relieved on September 27th. Petitioner alleges that
the senior track repairman should have been used as watchman and that the
Agreement was violated by the work being performed by the foreman.
Petitioner relies primarily on the Agreement in support of its
contention. Rule 5 establishes six different and distinct classifications
of employes in the Track Subdepartment ranging from Rank No. 1 Foreman
to Rank No. 6 Track Repairmen. Rule 30(f) provides that the senior available men shall be given pref
their home sections. The Organization also asserts that on this property
track repairmen have historically been used to watch track and foremen have
not been used for such service.
Award Number 20424 Page 2
Docket Number MW-20538
From the inception of the Claim on the property Carrier stated
that the duties of watching track may be assigned to am employee assigned
to the section and are not the exclusive work of track repairmen.
It is clear that the Agreement itself does not assign the work
of watching track to any single classification; in fact we find no mention
of this task in the Agreement. It is then incumbent on Petitioner to
establish by probative evidence that the work of watching track has been
historically, customarily and exclusively performed by the track repairmen, in order to sustain its
assertion of past practice but no evidence whatever in support of its
assertions. It has long been established by this Hoard that unsupported
assertions do not constitute proof (See Award 18471, for example).
Since the record shows that the Agreement does not support the
Claim and that the Organization has failed to sustain its burden of proof,
we must deny the Claim.
FINDINGS: The Third Division of the Adjustment Hoard, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employee 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 Hoard has jurisdiction
over the dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT HOARD
By Order of Third Division
ATTEST: __4/.! . (4V 1
Executive Secretary
Dated at Chicago, Illinois, this 27th day of September 1974.