Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29189
THIRD DIVISION Docket No. MW-28664
92-3-89-3-15
The Third Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (CSX Transportation, Inc. (formerly The Chesapeake ( and Ohio Railway Company)

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

(1) The Agreement was violated when the Carrier assigned Foremen S. Welters and B. Osborne to perform trackmen's work (installing switch ties) between Mile Posts 17 and 18 on the Sandy Valley Subdivision from November 9 through 13, 1987 [System File C-TC-2565/12(88-175)].

(2) As a consecuence of the aforesaid violation, Trackmen R. L. Burns and J. Burchett shall each be allowed five (5) days of pay at their applicable straight time rates."

FINDINGS:

The Third Div_sion of the Adjustment Board, upon the whole record and all the evidence, ".-ids that:

The carrier or :arriers and the employe or employes involved in this dispute are respective!; 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.

Claimants hold seniority as trackmen on the Sandy Valley Subdivision for CSX Transportation, Inc. As a result of a job reduction, the Claimants were furloughed from Carrier's service. Claimants filed their names and addresses with the Carrier in accordance with Rule 5(a) and (c) which reads in part as follows:

"(a) When employees displaced or laid off by reason of force reductions do not stand to work in any class and desire to retain seniority, they must file their name and address in writing not later than ten days from date they are cut off ....

Form 1 Award No. 29189
Page 2 Docket No. MW-28664
92-3-89-3-15
(c) When permanent vacancies or new positions are
not filled by employees already in the service,
cut-off men will be recalled to fill such positions

in accordance with their seniority Where

cut-off employees desire to be used to perform

temporary or extra work, they will notify the

`tanager-Engineering or other corresponding super

visory officer in writing accordingly. Men re

questing temporary or extra work which may arise,

will be recalled according to seniority, but if the

senior man is not available at the time the work

arises, any man available may be used until the

senior man is available ...."

On November 9 through 13, 1987, a Foreman and three Trackmen were assigned duties of installing switch ties at Dorton, Kentucky, between Mileposts 17 and 18 on the Sa ties has been customarily and traditionally performed by trackmen.

On November 30, 1987, the Organization filed a Claim on behalf of the furloughed Claimants requesting payment for "five (5) days each at the applicable rate that they wou their duty as a trackmen." The letter further requested the Carrier to "stop violating the Foremens agreement" everytime a Foreman is used to displace a trackman.

This Board has reviewed the record in this case, and we find that the Organization has not met its burden of proof that any contract violation occurred on the date in que
The record reveals that the Claimants had been furloughed as a result of business conditions and were not furloughed because a Foreman was being used as a replacement. Moreover, the record reveals that there was no work that was available for the furloughed employees.

This Board finds that the available work force was used along with the Foreman. The Carrier has a right to have its Foremen perform some of the work at issue under the Agreement of February 26, 1986 and letter of clarification which was written of Foremen.

In order to prevail in cases of this kind, the Organization must present sufficient proof of a v insufficient proof that the Foreman in question who was performing trackman work was doing so in violation of the Agreement. Therefore, the Claim will be denied.
Farm 1 Award No. 29189
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A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

Attest:

Nancy J. -Executive Secretary

Dated at Chicago, Illinois, this 3rd day of April 1992.