Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27806
THIRD DIVISION Docket No. MW-27067
89-3-86-3-376
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Rage Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when, on May 16, 1985, it
assigned other than Track Subdepartment forces to perform right-of-way maintenance work at Two Harbo
(2) As a consequence of the aforesaid violation, the senior furloughed 'B' machine operator in t
eight (8) hours of pay at the 'B' machine operator's straight time rate."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
As Third Party in Interest, the
Transportation Communications
International Union
was advised of the pendency of this dispute and filed a
Submission with the Division.
The Organization contends the Carrier assigned employees other than
Maintenance of Way forces to remove right-of-way stabilization material from
the right-of-way at the approach to Dock 1. The Carrier's response to the initial Claim asserted the
Subsequently, the Carrier claimed the material at issue was debris left behind
by the contractor who demolished several structures. Notwithstanding, the
Organization bases
its claim upon Rule 26, Classification of Work, Subsections
(f) and (i) set forth below:
Form 1 Award No. 27806
Page 2 Docket No. MW-27067
89-3-86-3-376
"(f) An employee assigned to the operation of road
way machines shall constitute a Roadway Machine
Operator. B&B employees performing B&B work at the
ore docks will operate machines used in the per
formance of B&B work, except crane work performed
by Track Department employees at the ore docks.
(i) An employee assigned to performance of work in
connection with construction, maintenance and dis
mantling of tracks, switches and maintenance of
roadbed and right-of-way, removal of snow, ice and
other obstructions shall be classified as a Track
Laborer."
The burden of establishing that the material was, in fact, bank or
right-of-way stabilization material lies with the Organization. Our review of
this record forces this Board to conclude the Organization simply has not met
this burden. Furthermore, Rule 26 (f) and (i) is a classification of work
Rule which this Board has repeatedly held are not exclusive grants of work to
a named classification. See Third Division Award 19921. In conclusion, we
find no rule or practice basis to determine the work in question belongs exclusively to Maintenance
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 29th day of March 1989.