Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28682
THIRD DIVISION Docket No. MW-28716
91-3-89-3-78
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:



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

(1) The Agreement was violated when the Carrier permitted B&O Railroad section employes to p Wellsboro, Indiana on September 18, 1987.

(2) The Agreement was violated when the Carrier permitted Grand Trunk Railroad section employes to perform track work on the Grand Trunk crossing diamond at Wellsboro, Indiana on September 22, 1987.

(3) The Agreement was violated when the Carrier permitted B6o Railroad section employes to perfo Grand Trunk and B50 diamonds, and a run off to the north of the 860 diamond to the loop wye at Wellsboro, Indiana on September 25, 1987 [System File C-TC4010/12(87-1324) CON].

(4) As a consequence of the violations referred to in Parts (1), (2) and (3) above, furloughed CSO employes James Brasfield, Kennith McInnis, James Burch, Joe McGill and Donald Maloney shall each be allowed pay at their respective pro rata rates fo man-hours expended by the outside forces performing the work referred to to Parts (1), (2) and (3) above. In addition, each Claimant shall receive three (3) additional days' credit for vacation qualTf'ying purposes."

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.


Form 1 Award No. 28682
Page 2 Docket No. MW-28716
91-3-89-3-78

On the dates cited in the Claim, the Carrier scheduled its Maintenance of Way forces to performa at Wellsboro, Indiana. The work was performed on Carrier's property. Additional forces covered by separate Agreements, from railroads also involved in the crossing diamonds' use, were also employed.

The Organization does not dispute the use of the other forces "to perform their runoffs from our having raised the diamond." The Organization argues, however, that these forces were employed to "assist" Carrier employees in work on the diamond itself.

The Carrier maintains that this coordination of forces at crossing diamonds is well established practice, while the Organization contends that work on the crossings has been'regularly performed solely by Carrier forces.

In the Board's view, the record fails to provide convincing proof as to the unwavering practice concerning the assistance provided in this type of operation. As the moving party, it remains the Organization's burden to demonstrate that the working arrangement did not conform to accepted practice, as well as to show the exact nature and extent of such assistance. In this position, a sustaining Award is not warranted.



        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:
        ancy J. - Executive Secretary


Dated at Chicago, Illinois, this 28th d4y of February 1991.