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,
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
In-Track Welding Game 6196 was formed to utilize a Plasser Saner .Tack welding machine to eliminate rail joints and create continuous welded rail on the Idaho Division. Positions on Gang 6196 were bulletined, and the Claimants were subsequently assigned to extra gang positions responsible for pulling spikes,
On September 2, 2000, the Organization submitted a claim on behalf of the Claimants alleging that section gang employees T. Passey, E. Hymas, R. Holm, R. Jimenez, A. Lucio and N. Bartschi had been improperly assigned on August 14, and on dates thereafter, to assist Gang 6196 and perform the work that the Claimants had formerly performed. The Carrier denied the claim, and having failed to reach a satisfactory resolution of the issues on the property, the parties submitted the dicnnte to the Board for final and hindino rPCnllltinn
The Organization contends 'that the Carrier improperly removed the Claimants from their assigned extra gang positions on Gang 6196 and replaced
and surfacing, lining and tamping track), the parties' Agreement specifies when such work is to be performed by section gang employees, and when it is to be performed by extra gang employees. It is the Organization's position that the work at issue here belonged to extra gang employees.
In support of its contention that Section Gang employees replaced Claimants in assisting Welding Gang 6196, the Organization relies on an undated statement frnm in-trark WPIdpr .1 Wiainatnn etatina that nn varinne rlatne hatwnan Ana_a* 1 C .. ..... ... ..... - . . _ _. .. ._ b .. , .,_ __ _. . _ .._~., ..~._ wu ~ -Suva a
6iyh. The Carrier, however, produced Labor Distribution Reports for August 2000 showing the work performed by Gang 6196 (field welding under Work Order No. 37964 on Segment 5025) as well as the work performed by the six employees the Organization claims replaced Claimants. Lucio and Hymas were assigned to Gang 6103, performing track maintenance along Segments 5010, 5015, 5025, 5026 and 5028; no work order number was specified. Passey, Jimenez and Holm were assigned to Gang 6104, performing track maintenance along Segments 5015, 5025, 5026, 5028, 5030, 5031, 5033; no work order number was specified. Bartschi was assigned to Gang 6081, working along Segments 5000, 5003, and 5010, 5015 under Work Order Nos. 407 and 39145. According to the reports, while Lucio, Hymas, Passey, Jimenez and Holm were at times performing work along the same segment
In response to the Carrier's submission of the Labor Distribution Reports, the Organization submitted 15 undated statements by various employees attesting that work performed under one work order may be charged to another work order to use up the budgeted money, so that the Carrier's Labor Distribution Reports may be inaccurate. Regardless of whether or not these statements are truthful, however, they are not probative of the accuracy of the Labor Distribution Reports submitted in the instant case regarding the work performed by Gang 6196 and the six emninvees the Orpanizatinn claims renlaced the Claimants in Ananct 2000_ ThP Board thus is left with a contradiction between Wigington's statement, and the Carrier's business records. Because the instant proceedings are appellate in nature, Form 1 Award No. 37856
Even assuming arguendo, however, that such allegation had been proved, the Board finds that the Organization failed to prove that the Carrier's use of section employees to perform the work in question would have been improper. The Organization contends that Track Sub-department employees assigned to Division Welding Gangs (other than Welding Foremen, Welders and Welder Helpers) have been Extra Gane emplovees both by Aereement and by oractice. The Organization pointed to several Agreement provisions in support of its contention. It notes that under Rule 4 of the parties' Agreement, the employees of the Track Sub-department are classified in groups, with Group 8 distinguishing between Assistant Section and Accicfnn* Tint.._ (-'onR Tinv.,.Y.~,. !`...,...,.. 1C ..a 'f0 a:.,s:...*..:..~:.... between T_ ~a.».~..uu. ain.u ~..a.as av.a...oIu, VIVu1,7O 1J auu 40 UXJLVVrU15IIIVg UGL~GGV rxtra
Gang and Section Truck Operators, and Groups 17 and 18 distinguishing between Sectionmen and Extra Gang Track Laborers. Therefore, the Organization argues, extra gang and section employees were intended to have distinct and separate responsibilities. Thus Rule 9(u), the Organization argues, defines a Sectionman as an "[ejmploye assigned on section or track maintenance gangs to perform work which has customarily been recognized as Sectionman's work," while Rule 9(w) defines a Track Laborer extra gang as an "[e]mploye assigned on extra gangs engaged in new construction or work not customarily done by section gangs ...." According to the Organization, under Rule 13, Section Il (c), Section Gangs perform routine maintenance, while Extra Gangs work on large projects, new construction and work not custnmarilv done by qertinn (:anus.
The Organization's reliance on Rules 9 and 13, Section 11 (c) is misplaced. While it is true that Rule 9 distinguishes between the positions of Sectionman and
By its laneuage, this Rule Drotects the work of Sertinn ranac frnm encroachment by Extra Gangs temporarily in the area doing work not customarily performed by those Section Gangs. It does not, however, reserve any particular work - not customarily done by Section Gangs or otherwise - to Extra Gang
The Organization further seeks to show that by agreement of the parties and by practice, Welding Gangs utilize Extra Gang rather than Section Gang employees, citing a Iviay 4, i98i Letter Agreement regarding an intent to establish Division Rail Heat Treating-Welding Gangs to "tentatively consist" of employees in classifications including Extra Gang positions. The Organization also cites a June 8, 1993 Letter Agreement regarding the establishment of an in-track welding crew to follow a detector car working on the Nebraska and Wyoming Divisions, stating that the positions that might be assigned to such a crew would include Extra Gang positions. In addition, the Organization submits 19 bulletins reflecting the assignment of Extra Gane emDlovees to in-track Weldinu Ganuc_
The Board finds that the Letter Agreements and bulletins presented by the Organization show only that Extra Gang employees have been assigned to the
TV c~uilis vauso L11~1. were III c ~UVjCI=tJ V1 III VJC Lt L~1~r~ements and bulletins, not that the support members of every Welding Gang have been Extra Gang employees. More importantly, the issue presented in the instant case is not whether only Extra Gang employees have been assigned to Welding Gangs, but rather whether the work of assisting Welding Gangs by performing track maintenance tasks has been reserved to such Extra Gang employees, or as the Carrier contends, may be performed by regular Section Gangs.
The Organization presented no evidence to counter the Carrier's contention in this regard. In fact, faced with the contention during on-property handling of the instant matter, the Organization stated "It may be true that under emergency citnntinnc nr nniocaeai rirr»metanrac fnrfinnc am _t;1;7aP1 *n oooiof ;n the . ork ..s
this may be somewhat accurate . . . ." The Carrier submitted a September 26, 2001 e-mail authored by Director of Track Maintenance P. Dannelly attesting that "On the Union Pacific property, section gangs have historically supported and worked with in-track welding annac_ FYtrn vnnm tin not hnvr nn nvrlneivn nranfvno supporting the in-track welders." The Organization failed to submit evidence refuting this statement. The Board therefore finds that the Organization has not met its burden in proving a practice reserving the work at issue herein to Extra Gang employees.
In light of the Organization's failure to meet its burden of proof regarding the material facts of its claim, the Board must deny the claim.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.