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.
On Thursdav. Sentomher 12_ 2(1(12_ a r1r,railvnPnt nrrnrrprt naar An f'nr~**c Christi Yard at approximately Mile Post 157.00. Resulting damage included a derailed locomotive and damage to the main line. The Carrier called in Lone Star Contractors to clear the derailment and get the main line back into service.
The Organization filed the above claim on September 16, 2002. It contended that the work performed at the derailment site by the outside contractor was work "highly recognized" as maintenance of way work. It insisted that the work at issue was thus covered under the Scope Rule of the Agreement and should rightfully have been performed by BMWE-represented employees. Accordingly, the Organization argued that the Carrier was obliged to give the Local Chairman notification of its intent to contract out and make a "Pond faith attemm" to come to an nndPrctanrlina regarding the contracting out of the work to be performed, before giving the work to an outside contractor. The Organization demanded that the Claimants named be compensated for the work opportunity lost. T
The claim was denied by letter of October 9, 2002. The Carrier denied having violated any portion of the Agreement. It further insisted that, without prejudice to its position that it had not violated the Agreement, there was no basis for the monetary clainlC_ The claim wne enhentrnnntlv nrn"rneenrl in +hn _c_~l manner including conference on the property on December 2, 2002.
WHICH was sent to the Organization on July 29, 2002, made no mention of the work at issue. It also contends that the site at issue was not a derailment site and that the work involved in the project at issue was clearly scope covered work. It further insists that the Carrier's need to contract out the work in this case was precipitated by its own failure to maintain an adequate workforce, not by any emergency situation.
The Carrier contends that the nruaniantinn'c claim is withmit merit fnr several reasons. First, it insists that the work at issue was utterly unrelated to the referenced subcontracting notice - rather, it involved an emergency derailment repair. Moreover, because it was an emergency, there clearly was not time to notify
aax~ vi pacu,naavaa and engage in discussions r egardtng perlorlnance of the contracted out work. Second, it notes that according to its records all Claimants were employed on the dates in question and some had worked overtime during that period. Thus they were unavailable to do the work at issue. Finally, the Carrier notes that the Organization failed to prove that the work at issue was work reserved exclusively to BMWE-represented employees. The Carrier contends that there is and has been a mixed practice of using BMWE-represented employees as well as other employees and/or occasional outside contractors to perform the work at issrle.
The Board reviewed the record with care. We find that the Organization failed to meet its initial burden of presenting ~a. prima facie case that the work was
aa.pv,l.u a.V uaa. vasuaaaa.taeavai. LGGAUJG Luc v7t.V1JG ~U1G 15 gcneini in natur_e, the Organization must proffer evidence that the work was customarily and historically performed by BMWE-represented employees. (See for example, Third Division Award 29034). This burden cannot be met merely by assertion. The Organization provided no evidence that the work at issue was customarily and historically reserved to BMWE-represented employees. Form 1 Award No. 38205