Under date of September 22,1998, the Organization alleged a violation of Article 10(b) of the National Vacation Agreement when the Carrier required Claimants T. F. Branch and L. B. Kitts to work assigned territory of Signal Maintainer K. D. Hunt who was on vacation. The Organization alleged that the two Claimants performed service more than 25 percent of the time on the assigned territory of the vacationing employee. The Organization maintained that Claimant Kitts:
The Carrier denied any Agreement violation in its letter dated November 18, 1998. It stated that no violation occurred because:
The Carrier maintains that it did not violate the Rule in that the work was not relief work.
The Board reviewed the Rule and facts at bar. The Organization denied that the work was not "relief work." By letter dated November 30, 1998, the Organization rejected the Carrier's argument, supra, in that "the work performed by Kitts and Branch was relief work under the provisions of this rule." There is nothing further in this record except a conference indication that the Carrier maintained that although the Claimants were required to work the vacationing employee's territory, "they should not be penalized as they had a maintenance of way gang working on that territory." Form 1 Award No. 36178
The burden of proof lies with the Organization to make a prima facie case that the Carrier violated Article 10(b). It states:
The Board finds that Signal Maintainer Hunt was on vacation from August 3-7, 1998. The Carrier had a right under the above cited provision to blank the position and it did so. Thereafter, the Carrier could utilize relief workers on the vacationing employee's territory so long as the quantity of work was not distributed to two or more employees and did not total more than 25 percent.
To make a prima facie case the Organization must show with probative evidence that the Agreement specifications appear to be violated. That it has done. There are two Claimants who worked the vacationing employee's position and they did so for more than 25 per cent. The problem in this case is that the Carrier denied that the work performed was relief work for either of the Claimants. It argued that the Claimants performed primarily work that was clearly specified as TSC work and would have been customarily performed by them whether or not Hunt had been on vacation or was working on his assigned territory.
In order to sustain its claim, the Organization was required to put forth sufficient evidence to prove that this was not TSC work. The Organization failed to engage the Carrier's rebuttal with any statement whatsoever that squarely denies that these Claimants would have been performing work that was not TSC work. The Carrier's denial was a soundly refuted statement never shown by the Organization with any clarity or by virtue of any evidence to have lacked merit. The Organization bares the ultimate burden of proof. Saying this is relief work does not make it so, nor does constant repetition take the place of proof. Nowhere does the Organization provide statements from the Claimants or from anyone that the work performed was reliefwork of vacationing Signal Maintainer Hunt. Nowhere in this record do we find any evidence that the work at the Dosset Tunnel or with the tampers was "relief work" or that Article Form 1 Award No. 36178