Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31669
Docket No. MW-31221
96-3-93-3-228
The Third Division consisted
of
the regular members and in addition Referee
Robert Richter when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation '
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned or
otherwise allowed outside forces (employes
of
the Township of
Vineland, New Jersey) to perform Maintenance
of
Way work (cut
brush along the right
of
way) on the Vineland Industry Track and
the Vineland Secondary Track, Mile Posts 30.6 to 38.0 beginning
August 6, 1991 and continuing (System Docket MW-2448).
(2) The Agreement was further violated when the Carrier did not give
the General Chairman prior written notification
of
its plan to assign
said work to outside forces.
(3) As a consequence
of
the violations referred to in Parts (1) and/or (2)
above, Track Foreman W.F. Rankin, Class II Machine Operators
J.E. Castaldo, N.J. Parris, Vehicle Operator C.E. Miller and
Trackman D.J. Cerveny shall each be compensated at their
respective straight time rates of pay '... for 8 hours a day, for 2 days
a week that those employees of the Township of Vineland continue
to cut the brush along the right
of
way including credits for time
worked towards his vacation, starting with August 6, 1991 and
continuing in accordance with Rule 26(f) until they are finished or
removed from the property..."'
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 31669
Page 2 Docket No. MW-31221
96-3-93-3-228
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.
On September 26, 1991, the Organization filed this claim with the Carrier's
Division Engineer alleging Vineland, New Jersey City employees had cut grass and
brush on the Carrier's property. Throughout the handling of the claim, the Carrier has
averred the city employees only cut grass and brush on property belonging to the city.
This claim must fail. The Carrier has no authority or control to assign city
employees any work. Also, this Board has no means to determine whether it was
Conrail property or city property. The Organization has the burden to prove the
Agreement has been violated by providing substantial evidence. Mere assertions are not
enough. This Board must dismiss this case because
of
irreconcilable facts.
AWARD
Claim dismissed.
ORDER
The 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.