Claimant J. G. McCallum contends that the Burlington Northern Santa Fe violated the Agreement by using outside forces to perform Maintenance of Way work between August 28 and September 13, 1996 in order to construct a 4800-foot track off the mainline in Blytheville, Arkansas. He seeks compensation at the Special Equipment Operator's rate of pay for himself, for Maintenance of Way work he asserts should have accrued to him rather than to a contractor.
It is Mr. McCallum's position that the clearing and degrubbing of land done at Blytheville, Arkansas during the dates in question, which was completed by the Carrier contractor, was work that has been done on a regular basis and continues to be done by Maintenance of Way employees. Mr. McCallum contends that the Maintenance of Way employees frequently complete this type of work, which includes road crossings that have to be at grade to drain correctly and have the proper amount of rock beneath the ties.
In the case at hand, Mr. McCallum asserted that Machelle Excavating spread and compacted the fines, "work Maintenance of Way employees do all the time." Further, he contends that the contractor "did not complete any work that could not have been completed by the Maintenance of Way workers who were ready and able to do the job, and to whom the profit from the job rightfully belonged." Additionally, McCallum contends that he had the expertise through licensing and experience to complete this work. The evidence he offers for his qualifications is a seniority roster dated March 1, 1998, which states he is qualified for the following:
In addition, he includes records from a personal diary with notes indicating he performed dozer work on the following days in 1996:
The Carrier asserts that the work in question has not been performed exclusively by Carrier forces, and that it has been done by outside forces in the past. Further, the Carrier contends that its forces did not possess the requisite compaction skills to perform the dirt work portion of the project. The Carrier asserts that it is not obliged to piecemeal Form I Page 3
projects such as the one completed in Blytheville, Arkansas. Additionally, the Carrier contends that McCallum's claim is procedurally improper, since the Claimant has listed a different claim before the Board than the one handled on the property, and has not cited a Rule that the Claimant believed the Carrier violated. Lastly, the Carrier asserts that the Claimant did not suffer any damages thus he is not entitled to any compensation for the alleged violation of the Agreement as he was fully employed at the time in question.
With respect to the Carrier's procedural objection, we do not find that the irregularity is sufficiently serious to warrant a finding that the claim before the Board was void ab initio. Key to the merits of the case at hand is whether or not the Carrier violated the Agreement by using a contractor to perform earth work rather than utilizing a Maintenance of Way employee for the same task. While the record does contain documentation that the Claimant may possess the qualifications to perform the work in question, and that similar work may have been performed by the Claimant and other Maintenance of Way employees in the past, there is no persuasive evidence that the work accrues solely to the covered employees. Also, there is no evidence in the record that refutes the Carrier's assertion that the contracting out of this type of work is a common practice. Accordingly, we find that the Claimant has not met the necessary burden of persuasion.