Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35976
Docket No. MW-32943
02-3-96-3-325
The Third Division consisted
of
the regular members and in addition Referee Edwin H.
Berm when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Louisville and
( Nashville Railroad Company)
STATEMENT OF CLAIM:
"Claim
of
the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier assigned outside forces to
perform Maintenance of Way work (tamping track) between Mile Posts
OOQ 118.0 and OOQ 119.0 at LaFayette, Indiana on July 21, 25, 26, 27, 28,
29, August 1, 2, 3, 4, and 5,1994 (System File 21895T/ 12 (95-0157 MNNJ.
2. The Carrier further violated the Agreement when it failed to give the
General Chairman a proper advance written notice of its intent to contract
out said work as required by Rule 60.
3. As a consequence of the violations referred to in Parts (1) and/or (2) above,
Trackman R. L. Jones shall be allowed eighty-eight (88) hours' pay at the
tamper operator's straight time rate and forty-two and one-half (42.5)
hours' pay at the tamper operator's time and one-half rate.
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the evidence,
rmds that:
The carrier or carrier' 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 21, 1934.
This Division
of
the Adjustment Board has jurisdiction over the dispute involved herein.
Parties to said dispute were given due notice
of
hearing thereon.
Form 1 Award No. 35976
Page 2 Docket No. MW-32943
02-3-96-3-325
On July 1, 1994, the Carrier notified the Organization of
its
intent to contract for the
rental of a Switch and Production Tamper with operator to work at the locations set forth in the
claim. The stated reason for the Carrier's action was ". . . due to the fact that the Carrier does
not have adequate equipment laid up or forces laid off, sufficient both in number and skill with
which the work might be done, in the required time frame."
The Organization has not carried
its
burden.
First, although the claim states that no advance notice was given prior to the Carrier's
action, the record shows that a notice dated July 1, 1994 was sent to the Organization by the
Carrier for work which commenced July 22, 1994. The Carrier met its notice obligations.
Second, the record shows that senior cut-back Machine Operators were upgraded for the
dates the Switch and Production Tamper with operator were rented.
Third, the Organization's contention that machinery was available amounts to a
conclusion disputed by the Carrier leading to, at best, a conflict in the record. Because the
burden is on the Organization to demonstrate the facts necessary to establish a violation of the
Agreement, such record conflicts are insufficient to meet the Organization's burden.
Fourth, aside from stating the proposition as a conclusion, in this record, the Organization
has not shown that the Carrier could have rented a tamper without an operator and assigned a
covered employee to perform the work.
Based on the above and due to lack of record support, the claim is denied.
AWARD
Claim dented.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that an
Award favorable to the Clalmant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 19th day of March, 2002.