The Third Division consisted of the regular members and in addition Referee Dennis J. Campagna when award was rendered.
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. Form I Award No. 39507
During the month of January 2004, the Carrier assigned Zone 4 Signal Foreman Caughron to run a Form "C" on Zone 5 territory. A Form "C" is a track bulletin which restricts the movement of trains and is used for the protection of workers and equipment in and around a live track area. The Signal Department utilizes Form "C" track bulletins in connection with taking grade crossing protection devices out of service. Roadway Worker Rules, as well as the Carrier's Operating Rules, require an employee to be in charge of communicating with train crews as well as other employees to ensure their safety in situations such as this.
On or about February 20, 2004, the Organization submitted a claim in which it maintained that by not assigning the Claimant to perform the work at issue, the Carrier violated Rules 40 and 44. The Carrier denied the claim contending that the situation was covered by Rule 36 which provides, in relevant part, that:
The Carrier also asserted that no tests were performed by Caughron because he merely ran a Form "C."
It is undisputed that no employee was involuntarily furloughed in the Zone 5 territory at any relevant time associated with this dispute.
In response, the Organization maintains that Rule 36 is not applicable in the instant situation where Signal Foreman Caughron worked as the only individual assigned to this work group and was, therefore, a "lone worker." This fact becomes Form 1 Award No. 39507
significant, the Organization notes, due to the fact that it is well understood that the application of Rule 36 is reserved to members of zone gangs comprised of two or more employees working together.
The Carrier's June 14 response reiterated its position regarding the applicability of Rule 36, but also noted, in relevant part, that:
Having carefully reviewed the record, the Board is inclined to deny the claim. In reaching this conclusion, the Board took note of the well established fact that whereas the instant claim raises a matter of contract interpretation, it is the Organization which must bear the burden of proof. In applying this well established fact, it is significant to the Board that while the Organization maintains that the work at issue was scope covered work that could very well have been performed by the Claimant, it never specifically identified the work it claims in this proceeding, even when pressed by the Carrier to do so. Accordingly, the record is left with an unanswered and very relevant question, one which the Board may not answer by speculation or presumption. Therefore, we have no choice but to deny the claim. (See Third Division Awards 37291, 37242, and 35638.) Form I Award No. 39507
Given the rationale behind our denial, we need not address the applicability of Rule 36 in situations such as the one before us.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.