"Claim of the System Committee of the Brotherhood that:

1) The Carrier violated the Agreement when it assigned Car Shop

employees to perform Maintenance of Way and Structures

Department work (cut up old rail, haul rail, crossties and scrap out

of the yard and cleaning the right of way) in the 'C' Yard at

Radnor, Nashville, Tennessee on February 21, 22 and 23, 1991

[System File 10 (38) (91)/12 (91-917) LNR1.

2) As a consequence of the violation referred to in Part (1) above,

furloughed Track Repairman J. P. Bradley and Welder W. L. Love,

Jr., shall each be allowed eight (8) hours' pay at their respective

straight time rates of pay for each of the dates cited in Part (1)

above."

Parties to said dispute %%ere given due notice of hearing thereon.

As Third Party in Interest, the Transportation Communications International hniou, Carmen's Division was notified of the pendency of this dispute, but chose not to rile a Submission with the Board.

In this case the Organization alleges that Carrier used Shop Craft employees (Carmen) to perform work which is reserved to AIofW employees by the Scope Rule. Claimants J. Bradley and W. Love Jr. have established and hold seniority in the Track and Welding Subdepartments, respectively. At the time of this dispute, Claimant Bradley was on furlough status.

By letter dated April 1, 1991, the General Chairman filed a claim asserting that on three consecutive days in late February 1991, Carrier "allowed" Car Department employees to cut up old rail and haul rail, crossties and scrap when clearing the rightof-way at Car Chairman, Carrier violated Rules 1, 2(d) 22(e) and 38(b) of the Agreement when it allowed Carmen to perform work "accruing" to Maintenance of Way employees.

In his reply to the Organization's assertions the Roadmaster advised the General Chairman:

"I don't have any knowledge of Car Shop people doing M/W work in the C-Yard.

I have cleaned the entire C-Yard of N1nV scrap using Gang 6M07 and Gang 6M30.

I have seen Car Shop people picking up old brake shoes and cutting up old air lines in the C-Yard."

Predicated on that information, the Division Engineer denied the Organization's claim maintaining that:

"Inasmuch as you have failed to offer any evidence to support your claim, and my investigation did not reveal any violation of the agreement, I find your claim lacks merit as well as contractual support."

The claim was discussed in conference wherein it was further declined.

On December 3, 1991, the General Chairman submitted a statement ostensibly signed by three MOW employees asserting that they had "observed two Car Shop employees loading and hauling scrap rail and used crossties out of the C-Yard at Radnor on February 21 and 22, 1991." In his final declination, Carrier's highest appellate officer stated that he was "not impressed" by the proffered statements "submitted some 5 months after the alleged incidents."

As the moving party, it %-,as incumbent upon the Organization to prove the material aspects of its claim by a preponderance of probative evidence on the record. The rather tardy statement signed by three NloiNV employees is insufficient to effectively refute the Roadmaster's statement that Car Shop employees did their work in cleaning the Yard and did not perform %lof%1Vwork.

On balance the Board is faced with an irreconcilable conflict of material fact which redounds to the detriment of the Organization which has the burden of persuasion on that fact. From the state of this record, we are unable to make an informed judgement as to whether the Agreement was violated or not. Therefore, we must dismiss the claim for failure of proof.

AWARD