Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28794
THIRD DIVISION Docket No. MW-27453
91-3-86-3-697
The Third Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (National Railroad Passenger Corporation (Amtrak) - ( Northeast Corridor

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

(1) The Carrier violated the Agreement when it assigned Track Supervisor W. Breneman to perform File NEC-BMWE-SD-1328).

(2) Foreman M. Rankin shall be allowed six (6) hours and thirty-three (33) minutes of pay at his stvaight time rate and five (5) hours and forty-two (42) minutes of pay at his time and one-half rate because of the violation referred to in Part (1) hereof."

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.


thereon.'

As Third Party in Interest, The American Railway and Airway Supervisors Association and the Unit pendency of this dispute, but did not file a Submission with the Division.

At the time of this Claim, Claimant was employed as a Track Department Foreman at Lancaster_ Pen
On Friday, March 8, 1985, a work train vas scheduled to enter the track between Cork and Leaman on Claimant's division. That train was carrying rail and equipment to be unloaded and used for track maintenance work to be performed out of Lancaster. Under the Carrier's operating regulations, the unloading of such a train on active trackage must be performed under the protection of a "Form W" tr Form 1 Award No. 28794
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91-3-86-3-697
. . . a Form 'W' Train Order must be used when track
is obstructed for maintenance, unless otherwise pro
vided by Special Instructions. The Train Order will be
addressed by name to the Foreman requesting use of the
track and to the Operators controlling entrance to the
track."

The Organization complains that on the occasion in question between about 9:00 A.M. and 9:00 P.M., the Carrier allowed a Track Supervisor to take the track out of service between Cork and Leaman by addressing the Form W Order in his name. The Organization contends that Claimant was available for such work and had expressed the desire to work overtime after his tour ended at 3:30 P.M. According to the Organization, the Carrier violated the Agreement by giving this work t
The Carrier asserts that, for the sake of continuity, the Form W Order was issued in the name of the Track Supervisor on March 8, 1985. Otherwise, such an order woul names of the various Foremen who supervised work in connection with the piloting and unloading of th the Track Supervisor himself performed no service accruing to the Foreman classification on March 8, 1985, and that in fact all such work was performed by at least three different Track Foremen, at least one of whom was on site during all the hours involved. In short, the Carrier argues that the work performed by the Track Supervisor was not work reserved to the Track Foreman classification or work to which Claimant had a right, and that the Organization has not shown that L
It is undisputed that the Rule titled "Scope and Work Classifications" in the parties' Agreement through a Form W train order. However, the Organization argues that the Carrier's Operating Rules and its established practice reserve that activity to Track Foremen. Furthermore, the Organization contends that the Track Supervisor also supervised t Order on the date in question, thereby usurping responsibility that clearly is reserved to Track Foremen. The Carrier disputes these assertions. The Carrier contends that Supervis The Carrier also insists that the Track Supervisor did no other work involved with the track maintenance operations on the subject date.

As the Carrier points out, it is the burden of the Organization when asserting a Claim such as this to establish that the work which it alleges was wrongly performed by others was work exclusively--reserved by Agreement or established practice to the employees whom the Organization represents. This is a firmly established and familiar doctrine. In this case, however, the Organization has not proved what work in fact was performed by the Track Supervisor on March 8, 1985 Organization. Instead, this is a case where the record contains a fundamental conflict in the evidence as to these critical elements. It is well established that, where the Board Form 1 Award No. 28794
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in the parties' versions of the facts underlying a Claim, the Board has no recourse other than to dismiss the Claim. See Third Division Awards 25973, 27178, 27195; Second Division Awards 11363, 8601. Since this is such a Claim, the Claim here must be dismissed.






                            By Order of Third Division


Attest.
      Nancy J., ofer - Executive Secretary


Dated at Chicago, Illinois, this 15th day of may 1991.