Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32647
Docket No. MW-32372
98-3-95-3-219
The Third Division consisted of the regular members and in addition Referee
Gerald E. Wallin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Missouri
( Pacific Railroad)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1). The Agreement was violated when the Carrier assigned Division
B&B forces to perform the duties of System B&B forces (built a
steel bridge at Mile Post 258.3 on the Brownsville Subdivision)
beginning November 30, 1993 and continuing and failed to pay them
at the proper rate for such work (Carrier's File 940231 MPR).
(2) As a consequence of the above-stated violation, the members of
B&B Gangs 3001 and 3005 and Messrs. B. Trevino, I11. H. S.
Wicke, J. E. Ayala and A. V. Lira shall each be compensated'. . .
for the difference in rate of pay between Division and System B&B
employes plus System seniority in the classification that each man
performed System work. Claim to begin November 30, 1993, and
continue for as long as they perform this work.'"
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 11, 1934.
Form 1 Award No. 32647
Page 2 Docket No. MW-32372
98-3-95-3-219
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
Although the parties' Submissions deal extensively with procedural matters, we
do not find that the claim can be properly decided on such grounds. While there is a
vigorous dispute over whether the claim properly alleges a continuing violation, the
Carrier did not raise any procedural objections in its initial denial on the property.
On the merits, the Carrier repeatedly denied any Agreement violation in
assigning the work as it did. Given this position, it was incumbent upon the
Organization to satisfy its burden of proof to show that the disputed work was
exclusively reserved to System B&B forces. None of the Agreement Rules cited as
having been violated contains any language explicitly reserving the work. Moreover,
the Organization provided no probative evidence to show historical, traditional or
customary performance of the work by System B&B forces to the exclusion of all others.
On the record before us, we must find that the Organization has not met its burden of
proof.
AWARD
Claim denied.
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 20th day of July 1998.