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:



STATEMENT OF CLAIM:





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.




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.




      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.