(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Fort Worth and Denver Railway Company

(1) The Carrier violated the Agreement when it failed to allow extra gang employes working at Vernon, Texas $7.00 per day for meals sad lodging (System File F-9-76/W-29).

 (2) Extra gang employes listed* and any other gang members not listed or hired at a later date each be allowed $7.00 per day beginning 60 days retroactive from August 24, 1976 and to continue until said violation is corrected.









OPINION OF BOARD: The record establishes that Carrier initiated a
 track maintenance program in June 1976 at
 Vernon, Texas. In connection therewith, the company added to the
 crew assigned to such work by hiring three new laborers and by trans
 ferring five other laborers "who were cut off other section groups in
 force reduction." At about the same time, three machine operators,
 who have system-wide seniority, moved onto the Vernon section with
 their machines. The machine operators were paid $7.00 per day for
 meals and lodging; the laborers were not, and a claim was accordingly
 filed for per diem payments for the laborers on the grounds that


"The tie gang now located at Vernon,. Texas is in reality an extra gang which is being moved from section to section originating in the Petersburg, Texas area . . ,when the tin inserting pry is finished at one location, the extra employees on that section or gang are notified of force reduction, they are then advised that forces are to be increased at next location and they can place themselves there."

 Petitioner claims a violation of a Memorandum of Agreement dated December 19, 1975 which provides, in part;

        "1. This agreement applies only to employees assigned to extra gangs. Extra gangs may be designated as tie gangs, . . . . "


                    * x


        "3. Employees assigned to extra gangs will be allowed X7.00 per day for meals and lodging for each full day woo3Ced as a member of a gang . . . . "


Petitioner alleges that the "tie gang first established at Petersburg was never intended as a headquarters gang" but that "its establishment as a part of a so-called track section is a subterfuge to avoid the payment of the $7.00 per diem allowance."

 Carrier denied the existence of an Extra Gang, holding that the gang at Veraoa was at all times a section gang, and was not converted to an extra gang, as alleged by Petitioner; that the three new employes hired were hired as trackmen on the Vexaon section gang and not on a tie or extra gang; that the remaining 5 employee, who were transferred, joined the Vernon section gang as ivdividusls on varying dates from May 25 to June 15, 1976, from two section (not extra) gangs; and that section gangs are expressly excluded 3n the December 19, 1975 Memorandum of Agreement by the following provision:

        "1. This agreement applies only to employees assigned to extra gangs."


Finally, Carrier maintains that the increase or decrease in the size of the section gang cannot operate to change its status or classification.
                    Award Number 22433 Page 3

                    Docket Number MW-22304


The question before us, therefore, is: Was the gang at Vernon, Texas a section gang or was it an extra gang?

 As we read the record, there is no evidence that the company established an additional or extra gang when it embarked upon its tie-renewal program. Rather, the Vernon section gang was enlarged by the addition of new employes and by employes transferred from other section gangs. Such augmentation does not per se. change the Vernon section gang to that of an extra gang.

 Petitioner has failed to meet the burden of proof required to demonstrate that the enlarged crew was designated (or considered) a tie or extra gang. The Carrier, in its first denial letter dated October 15, 1976, asserted that the extra gang alleged by Petitioner was nonexistent, and this statement was never controverted by evidence of probative value. The company consistently denied that the group in question constituted an extra gang. No evidence has been presented that the work crew involved herein was other than a section group or gang, as claimed by Carrier, nor was proof submitted by Petitioner that the crew was titled or characterized as an extra or tie gang per se. Absent such evidence, Petitioner cannot sustain its unilateral designation of the crew as a tie gang or extra gang.

 Inasmuch as we can find no evidence in the record that an assigned extra gang was operating at Vernon, Texas at the time, and that the Claimants were members of such a gang, the claim predicated upon the alleged existence of such a gang must fall. Furthermore, there being no showing of the existence of such an extra gang, the compensation sought in this case must be denied, since the 1975 Memorandum of Agreement applies only to employes assigned to extra gangs. The claim, therefore, must be denied.

        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;
                    Award Number 22433 page 4

                    Docket Number MW-22304


That this Division of the Adjustment Board has jurleftrtion over the dispute involved herein; and

        That the Agreement was not violated.


                    A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJBSTMW BOARD

                        By Order of Third- Division


ATTEST: pw~

        Executive Secretary


Dated at Chicago, Illinois, this 15th day of June 1979.