The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
When originally filed, the Organization's claim contended that the Carrier "contracted out roadbed maintenance work (Cleaning of debris) on the Philadelphia Division starting from January 24, 1991 ...." as well as the failure of the Carrier to "timely notify the General Chairman of its intention to contract out this work fifteen (15) days in advance of the contracting transaction." Make whole relief was sought on behalf of the four named furloughed Claimants.
In its initial response, the Carrier asserted that "Labor clearance was obtained." The Organization then demanded production of any notice to the Organization from the Carrier of the Carrier's intention to contract out the work and any "Labor clearance" given by the Organization.
The Carrier next responded that the work in question was not exclusive to the employees and that the Carrier "does not possess the equipment necessary for work of this size."
While the Organization is correct that the Carrier's position appeared to change during the different levels of handling the claim, nevertheless, in the end the ultimate burden is on the Organization to establish the necessary factual elements supporting its claim. Here, the Organization has not done so.
From the evidence in this record as developed on the property, this Board cannot definitively determine whether, as initially alleged by the Organization, the contracted work was simple "roadbed maintenance work (Cleaning of debris)" which was contracted out without prior notice (which would entitle the Organization to a sustaining award-see e.g., Third Division Award 31449), or whether the work was of the type characterized by the Carrier as "demolition and excavation work... part of the larger National Docks Project" which the Carrier need not "piecemeal" (which would result in a denying award-see e.g., Third Division Award 29187).
Because the Organization's burden has not been met, we must therefore deny the claim.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.
LABOR .'-'EMBER'S DISSENT
TO
.WARD :1526. DOCKET MW-30743
Referee Benn)
The overriding croclem with the Majority's position in this case is the fact that at the first level of handling, it alleged that it issued notice and received labor clearance to contract out the work. Thereafter, --he General Chairman asked for proof thereof which the Carrier never provided during the handling of this case .. t.^.e crcperty. :nst=aa, --he Majority held that _nasmuch as the -rganizac:cn could nor ::it moving targets, which. the Carrier's ~ult:c:e and ever c::a:a:::a Defenses were, _t somehow railed to meet its burden of proof _n chis case.
This Memner always thought that a party raising an affirmative defense in response to a prima facie case was responsible for providing proof thereof when challenge defense, without supporting evidence, in order to defeat an otherwise proper claim. The problem may "labor clearance" as it initially alleged. But instead of doing that, it merely changed the color of its defense by raising one unsupported affirmative defense a Organization has been chided by this Board for taking a scatter-gun approach to claim handling. However, in order to hit a moving target, at times one needs a scatter-gun. Years ago this Board has
.:eld tnat such a veaccn ~a .not proper when progressing disputes before this Board. we believe that the Carrier should be held to the same standards as is the Organization, which was clearly not done =n :his case.
."he facc remains in -,his case thac the Carrier's _nitial de'_ense was _.^.ailences ',~y 4_:e Drgamzat;on and _,. _faW_ed to meet its aff_rmac_ve defense There?cre, : am ccmpelled to dissenc.