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.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
During the period of March 8 through April 27, 1999, Sectionman K. H. Isaacson provided flagging on a state bridge project near Redfield, South Dakota. By letter dated May 3, 1999, the Organization filed the instant claim alleging that Flagman's work was performed in excess of 30 days, and, therefore, the Carrier was required to bulletin a Flagman vacancy in accordance with Rule 20, which provides:
The Organization contends that the Claimant, who was furloughed at the time, should have been recalled and assigned to the vacancy based on his seniority and pre-existing rights on the Flagman roster.
The Carrier argues that the Organization failed to meet its burden of proof in this case. In the Carrier's view, the record is devoid of evidence establishing that flagging was necessary on more than an intermittent basis. Lacking the requisite factual predicate, the Organization has not shown that the Carrier violated Rule 20 when Sectionman Isaacson provided flagging as part of his regular job duties.
Looking at the record developed on the property, the Board finds assertions and counter assertions as to the work performed during the relevant time period. Form I Award No. 37841
The Organization argues that Sectionman Isaacson performed flagging work full time; the Carrier insists that this was not so. Based on this conflicting record, we cannot ascertain the extent to which flagging duties were required. The Organization submitted evidence that flagging vacancies had previously been bulletined, but such evidence is not material or relevant to the basic inquiry as to whether a contractual vacancy existed for a Flagman in the matter at hand.
The Organization, as the moving party in this dispute, had the burden of proving the elements of its claim. It did not do so. Absent evidence that sufficient flagging was performed on a regular basis to justify the establishment of a regular Flagman's position, the claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.