"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier assigned Track Gang 445 employes to perform track patrol work between Nichols Mile Post 242 and Monett Mile Post 283 on June 1, July 6, 7, 20 and 21, 1991, instead of assigning District Gang 442 (Track Foreman R. D. Long and Trackman Driver G. D. Jackson) (System File B1495/8MWC 91-09-04A SLIT).

(2) As a consequence of the violation referred to in Part (1) above, Track Foreman R. D. Long and Trackman Driver G. D. Jackson shall each be allowed sixteen (16) hours' pay at their respective time and one-half rates."

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

The Organization filed this claim alleging that Track Gang 445 performed track patrol work on the territory of Track Gang 442 on the rest days of the gang. It argues that the Carrier violated Rule 62(m) of the Schedule Agreement. The Rule reads as follows:

"(m) Work on Unassigned Days - Where work is required by the Carrier to be performed on a day which is not a part of any assignment, it may be performed by an available extra or unassigned employe who will otherwise not have 40 hours of work that week; in all other cases by the regular employe."

The Organization cites numerous awards which it avers supports its position in this case.

The Carrier takes the position that it has been working the track gangs involved in this claim in the same manner for over ten years. Therefore, the claim should be barred under the Time Limit Rule of the Agreement. While the position of the Carrier is well taken, the fact that a practice has been on-going for many years does not make it a rule when there is a rule that clearly prohibits the practice.

However, it is the Organization's burden to prove that such a rule exists.

The Carrier argues that the track gangs are seven day assignments with different off days.

The Rule cited by the Organization does not prohibit the Carrier from establishing the assignments as it has done for the past ten years. The rule does not limit the territory of another gang.

After careful review of the Organization's Submission and the correspondence of record we find that it has failed to meet its burden by proving that the actions of the Carrier are prohibited by the Agreement.

AWARD