PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the .System Committee of the Brotherhood that:

 (1) The Agreement was violated when, on September 11, 1979, four (4) Track Department employee were used to perform Bridge and Building Department work on the 'Merchants Bridge' at Venice, Illinois (System File TRRA 1979-4.4).
(2) B&B Mechanics D. M. Morton, J. K. Roberds, A. Thames and T. Holmes each be allowed eight (8) hours of pay at their respective straight time rates because of the violation referred to is Part (1) hereof."

 OPINION OF BOARD: The Carrier's B&B Department employee constructed certain
 steps on a steep slope of an embankment using ties, timbers,
 guard rails, etc. There appears to be no question that said work was performed
 properly by the B&B employee, however certain of the Carrier's Track Department
 employee were engaged in unloading ballast, and they ualoade$ sufficient ballast
 to distribute same in the embankment at the locgtion of the steps, including
 filling is sad around the steps.

 The Employee assert a violation of their agreement, including that portion which states that B&B carpenters construct, maintain and dismantle bridges, building, miscellaneous structures and appurtenances; including application of asbestos or composite materials.

 The Board is unsure of the specific factual circumstances involved in the case. As the matter was handled on the property, the Employee continued to assert that they were interrupted fry a completion of the task of building the steps, and that the act of the~Traek Department employee in spreading the ballast in and around the steps was, is reality, a completion of the project. Conversely, the Carrier continues to insist that the steps, as such, were completed, and that the Track Department employee merely spread some ballast in and around a completed set of steps. We feel that said distinction is crucial to a determination of the case, because it the spreading of the ballast, was, is fact, an integral part of the building of the steps, we would be inclined to sustain the claim. If, on the other hand, the spreading of the ballast was merely a procedure to enhance the usefulness or cosmetic value of the completed steps, then he would be inclined to deny the claim.

 Ea the final analysis, the Employee bear the burden of proof, and we are unable to find that the evidence preponderates to the benefit of either party, and accordingly we have no alternative but to dismiss the claim for failure of proof.
                      Docket Number NW-23899


FINDINsS: 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 Employee involved in this dispute are respectively Carrier and Employee 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 claim be dismissed.


                        A W A R D


        Claim dismissed.


                            NATICKAL RAIIROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
        National Railroad Adjustment Board


By
        Rosemarie Brasch - Administrative Assistant


Dated at Chicago, Illinois, this 5th day of January 1983.

                    Il · , _ _ .v


                        u. . , n .


                      n


                          /~.· .·J`