Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31674
Docket No. MW-31256
96-3-93-3-272
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 junior
employe R.P. Shull, Jr. to perform overtime service at Mile Posts
145 to 130 and Mile Post 76 to 71 on the Cherry Tree Secondary on
October 27, 1991 instead of assigning the senior employee, Mr. D.P.
Smith (System Docket MW-2330).
(2) As a consequence of the violation referred to in Part (1) above, Mr.
D.P. Smith shall be compensated for ten (10) hours' pay at his time
and one-half rate and credit for 1.85 days for benefits and vacation
purposes."
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.
Form 1 Award No. 31674
Page 2 Docket No. MW-31256
96-3-93-3-272
On October 27, 1991, the Carrier needed an employee to perform quality control
work for Tie Gang TM-224. The date was an assigned rest day for the gang. The
Carrier chose the machine operator of the spike driver for the overtime.
The Organization claims that quality control work is performed by trackmen, and
that the Claimant is the senior trackman. It further argues the work is done with hand
tools.
The Carrier argues that quality control has always been performed by the
operator of the spike driver and the machine is used in performing the quality control
work.
This Board has no means to determine the facts in this case. The Organization
has the burden of proof to show the Agreement has been violated by providing
substantial evidence. Mere assertions are not sufficient. In accordance with a legion of
Third Division Awards this case must be dismissed.
AWARD
Claim dismissed.
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.