Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31605
Docket No. MW-30828
96-3-92-3-650
The Third Division consisted
of
the regular members and in addition Referee
Dana E. Eischen when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Kansas City Southern Railway Company
STATEMENT OF CLAIM:
"1) The Agreement was violated when Carrier assigned outside forces
(JWT) to cut brush and trees and pile same for burning at road crossings
located between Pittsburgh (Mile Post T-98.3) and Winnsboro (Mile Post
T-117.7), Texas on December 3,4,5,6 and 7, 1990 [Carrier's File 013.31320 448)].
2) The Agreement was violated when Carrier assigned outside forces
(JWT) to cut brush and trees and pile same for burning at road crossings
located between Winnsboro and Como, Texas on December 10, 11, 12, 13
and 14, 1990 [Carrier's File 013.31-320 449)).
3) The Carrier also violated Article IV
of
the May 17, 1968 National
Agreement when it failed to furnish the General Chairman with advance
written notice
of
its intention to contract out said work.
4) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Section Foreman R. Oney and Laborers M. Bradshaw and G.
Duffey, Jr. shall each be allowed pay at their respective straight time rates
of pay for an equal proportionate share of the one hundred fifty (150) manhours expended by the outs
5) As a consequence of the violations referred to in Parts (1) and/or (2)
above, Section Foreman R. Oney and Laborers M. Bradshaw and G.
Duffey, Jr. shall each be allowed pay at their respective straight time rates
of pay for an equal proportionate share of the one hundred fifty (150) manhours expended by the
Form 1 Award No. 31605
Page 2 Docket No. MW-30828
96-3-92-3-650
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
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.
Parties to said dispute waived right of appearance at hearing thereon.
Carrier denied the claim on a number of grounds, but we need comment only
upon one. By letter of February 23, 1991, Administrative Manager Engineering Field
Linda S. Corley advised the Organization as follows: "Also, in checking records, I do
not find where any contractor worked between Pittsburgh, Texas and Winnsboro, Texas,
on the dates you have claimed performing the work you have claimed". Even after this
material fact was put in dispute by Carrier, the Organization provided no persuasive
evidence that the outside forces had in fact performed the claimed work at the claimed
locations on the claimed dates. Rather, the Organization simply appealed the denial
with the bare assertion: "I have not found that any claimants or members have turned
in claims that were frivolous."
Frivolity is not the issue. Proof of alleged facts is the issue. As the moving Party,
the Organization bears the overall burden of persuasion and the initial obligation to
prove every material fact necessary to make out a prima facie claim, especially after
Carrier flatly challenges the accuracy of alleged operative facts giving rise to the claim.
The Organization .failed to meet that burden of proof on this record.
AWARD
Claim dismissed.
Form 1 Award No. 31605
Page 3 Docket No. MW-30828
96-3-92-3-650
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 29th day of August 1996.