On the dates indicated in the claim, Machine Operators Esparza and Cordero, who normally worked a ballast regulator and tamper, respectively, were assigned to high spiking ties at various points on the Carrier's El Paso District in connection with routine track maintenance. At issue here is the Organization's contention that Carrier should have recalled two furloughed Track Laborers to perform the work in dispute.
The record indicates that for five consecutive workdays, Claimants spiked ties and performed other track labor. including assisting with welds and cutting rail, on a contiguous stretch of track approximately eight miles long. The Organization's challenge to these assignments is based upon several provisions of the Agreement, including those governing Scope, Seniority, Promotions and Filling of Vacancies and Roadway Machines. The facts of record implicate chiefly the last two of those provisions. Article 8 reads in pertinent part:
The Carrier defends its actions on the grounds that the challenged work was incidental to and part of the normally assigned duties of the Machine Operators involved. It asserts that during the days immediately preceding the dates in question, Esparza and Cordero were fully occupied with tamping and regulating track, and that completion of their track surfacing required certain backwork, including high spiking. Thus, the crew was at no time used to "supplement" a track group - the work at issue was an integral part of their Machine Operator duties, and expressly allowed under Article 17. Lastly, Carrier maintains that it has no obligation to recall furloughed employees unless there is a vacancy of "more than thirty (30) days," which there clearly was not.
Based upon a careful review of this record, the Board concludes that the Organization's assertion of non-compliance with Article 8 is mistaken. No temporary vacancy anticipated to last in excess of 30 days was presented on the facts of this case, and thus no obligation to bulletin was triggered.
With respect to the Article 17 contention. while it is indisputable that track machines were idle and track labor performed during such downtime, the factual issue of whether the machines of Esparza and Cordero were actually idled "for the sole purpose" of having them do track labor was never resolved on the property. If their machines were down for lack of immediate work. no violation would be established. It is. of course. the Organization's burden to demonstrate a violation - and an essential component of a violation here is proof that machines were "idled for the sole purpose of supplementing the force on a gang." Resolving this fact question is crucial to that proof.
Because the record does not provide a basis for determining if there was a causal connection between the idling of machines and the spiking and other functions complained of. the Board finds an irreconcilable dispute on an essential fact issue, and must dismiss the claim.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.