(Transportation Communications International Union PARTIES TO DISPUTE:
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Janitor's position at the Providence Maintenance-of-Way (MOW) Base is held by clerical employee, Edward Perroli. On March 9, 10 and 11, 1992, Perroli was off work on Bereavement Leave (pursuant to the Compassionate Leave Rule contained in the controlling Rules Agreement, effective September 1, 1976) due to a death in his family. The Organization alleges that Carrier blanked Perroli's position on all three dates he was off work on leave, but notwithstanding having done this, Carrier, on March 10, 1992, utilized employee, Ronnie Taylor, a track department employee, to perform the janitorial duties reserved to Perroli for one entire shift. The claim alleges that Taylor, a non-TCU bargaining unit employee, performed the janitorial duties of cleaning in the Communication & Signal (C&S) area which involved the lunch room, both tables and floor and the C&S rest rooms. By so utilizing Taylor to perform Perroli's janitorial duties, the Organization asserts Claimant was deprived of a work opportunity as she was the senior qualified available TCU employee willing to work the vacancy. The subject claim seeks payment to Claimant for the eight hours worked by Taylor at the punitive rate of time and one-half.
As a primary defense against the charge it violated Rule 1, the Scope Rule of the 1976 Rules Agreement, as well as other identified Rules, by utilizing a non-TCU employee to perform the janitorial work of cleaning the Providence MOW Base, Carrier accuses the Organization of inaccurately setting forth the facts surrounding the instant dispute; specifically, Carrier asserts the following:
violated the 1976 Rules Agreement depriving Claimant of a work opportunity and, as the first hurdle in meeting this burden it is incumbent upon the Organization to demonstrate, without doubt, that the work duties in dispute are, in fact, part of the assigned duties performed by TCU employee, Edward Perroli. However, it is clear from the record evidence before us that the Organization failed to meet this threshold hurdle in that it countered Carrier's charge of misstating the facts by mere assertion rather than the proffer of conclusive evidence. The bottom line is, that there is no substantive evidence before the Board that persuades us that the disputed work fell within the work responsibilities assigned to employee Perroli. Having failed to establish this as fact, the Organization is in no position to effectively support the further arguments it raises here such as that Carrier violated the Scope Rule or that the punitive rate sought as a remedy is the appropriate and proper relief in compensating Claimant for the asserted deprivation of work opportunity. Accordingly, the Board finds to dismiss the instant claim based on insufficiency of evidence which, in turn, resulted in the Organization's inability to meet its burden of proof.