Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36116
Docket No. MW-34258
02-3-97-3-770
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 Missour( Kansas-Texas Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned and used
MoPac Employes on Gang 2574 to perform work of cleaning out
ditches and dirt work in the vicinity of Burleson, Texas, from Mile
Post 243.0 to Mile Post 215.0 on August 1 through 29, 1996 instead
of assigning Machine Operators M. E. Brooks and J. M. Geis to
perform said work. (System File 3-21-96-18/1029191 MKT).
(2) The Agreement was violated when the Carrier assigned and used
employes on MoPac Gang 2559 to perform the work of cleaning out
ditches and slop embankment in the vicinity of Whitesboro, Texas
to Denison, Texas from Mile Post 684.0 to Mile Post 661.0 on
September 9, 10, 11 and 12, 1996 instead of assigning Machine
Operator M. E. Brooks and Truck Driver J. E. Exum to perform
said work (System File 3-21-96-35/1032780).
(3) As a consequence of the violation referred to in Part (1) above, the
Claimants shall each be allowed one hundred seventy (170) hours'
pay at their respective straight time rates plus any and all overtime
worked by the MoPac forces on the dates involved here.
(4) As a consequence of the violation referred to in Part (2) above, the
Claimants shall each be allowed forty (40) hours' pay at their
respective straight time rates plus any and all overtime worked by
the MoPac forces on the dates involved here."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 36116
Page 2 Docket No. MW-34258
02-3-97-3-770
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 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.
As noted by the Statement of Claim, the docket purports to combine two claims.
The Carrier objected to this tactic and asks that both claims be dismissed because of this
procedural impropriety.
The Carrier maintains, and the two records so reflect, that the claims were
handled as entirely separate matters on the property. Our review reveals that the two
matters involved different work (albeit somewhat related) at different locations, different
dates, different pairs of Claimants, raise different issues, and, as a result of the issue
difference, require different analysis. The only points of commonality are the identity
of one of the Claimants in each pair and the Rules allegedly violated. Absent agreement
by the parties, this is not a sufficient basis for combining disputes before the Board.
Notwithstanding the foregoing, the two records present other compelling reasons
why neither can be sustained.
The Carrier asserted the first claim, for the month of August 1996, was not timely
filed. According to its January 13, 1997 denial, the Organization knew the disputed
work began as early as July 1,1996, but the claim was not filed until September 3,1996,
which is beyond the 60-day filing time limit established by Article 28 Section 1(a).
Although it had ample time and opportunity to do so on the property, the
Organization did not respond to the Carrier's timeliness objection in any manner
whatsoever. Thus, we must accept the Carrier's assertions about timeliness and the
application of Artide 28 on this record as being valid. Accordingly, the first claim must
be denied on this basis.
A Carrier assertion on the second claim challenged the very heart of its
substance. According to the Carrier's February 7,1997 denial, Gang 2559 "... was not
working on the MKT Federation as your claim has asserted. Nor was this gang working
within the milepost locations specified in your claim." The Carrier's assertion, which
directly refuted the substance of the second claim, thus triggered the Organization's
obligation to prove these material elements by providing probative evidence. The record
is entirely devoid of such evidence.
Form 1 Award No. 36116
Page 3 Docket No. MW-34258
02-3-97-3-770
Given the state of the record in the second claim, we must find that the
Organization failed to satisfy its burden of proof. The second claim, therefore, must be
denied.
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 22nd day of July 2002.