Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36762
Docket No. MW-36033
03-3-00-3-140
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Santa Fe Railway Company
( (former Burlington Northern Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned Welding
Sub-department forces to perform overtime Track Subdepartment work (clearing snow from track switches) on the
Culbertson Section on February 25 and 26, 1998 instead of
calling and assigning Track Sub-department employe G. D.
Marchwick (System File B-M-604-H/MWB 98-08-05AA BNR).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant G. D. Marcbwick shall now be compensated for ". . .
sixteen (16) hours pay at one and one-half times the Track
Inspector's rate of pay."
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 21, 1934.
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This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
On February 25 and 26, 1998, the Carrier used Welding Sub-department
employees Head Welder W. Nelson and Grinder Operator C. Rudolph to
supplement the Culbertson Section to remove snow from switches rather than
calling the Claimant who was assigned as a Relief Track Inspector in the Track
Sub-department and who was observing his rest day. The Claimant was senior to
Nelson and Rudolph.
This is a dispute between employee groups concerning the assignment of snow
removal work. Absent a clear reservation by Rule of that work only to the
Claimant's class of employees, the Organization is required to demonstrate that
such snow removal work has been historically and exclusively performed by that
class of employees on a system-wide basis. See Public Law Board No. 3460, Award
65:
"The Board is constrained to note that the Organization is taking
the position that not only is snow removal work reserved exclusively
for employees on the Maintenance of Way category but also within
that group, exclusively reserved to Track subdepartment only by
historical systemwide exclusivity. Such evidence, however, is not in
the record. Petitioner has failed to indicate that the work of snow
removal belongs exclusively to any class of employees, much less the
Track subdepartment group. Further, there is no rule support for
the position that the- work in question belongs to the Claimant
herein ...."
Here, there is no Rule that clearly reserves snow removal work only to the
Claimant's class of employees. Further, there is no evidence that the Claimant's
class of employees has historically and exclusively performed this work on a systemwide basis. Characterizing this claim as a seniority dispute does not permit the
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Organization to avoid the consequences of the required burden of proof in this kind
of dispute.
Because the Organization has not met its burden of proof the claim will 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 29th day of December 2003.