Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39951
Docket No. MW-40204
09-3-NRAB-00003-070472
(07-3-472)
The Third Division consisted of the tear members and in addition Referee
Martin H. Malin when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES TO DISPUTE: (
(National Railroad Passenger Corporation (Amtrak)
( Northeast Corridor
STATEMENT OF CLAD
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement vas violated when the Carrier established and
assigned Gangs Y-408 and Y-412 as Rule 89 gangs and when it
assigned said gangs to perform Rule 90 B Northern District work,
such as material handling for switches at Davisville Yard in North
Eton, Rhode Island, on April 16, 2006 (Carrierss File NECBMWE-SD-4619 AMT).
(2) As a consequence of the violations referred to in Part (1) above,
Claimant W. Jackson shall now be compensated for ten and one
half (10.5) hours of overtime at his respective and applicable 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.
Form 1 Award No. 39951
Page 2 Docket No. MW-40204
09-3-NRAB-00003-070472
(07-3-472)
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
The Carrier established Gangs Y-408 and Y-412 pursuant to Rule 89. The
instant claim challenges the establishment of those gangs and their assignment on April
16, 2006, to perform switch installation/replacement work on the Northern District at
Davisville Yard in North Kingston, Rhode Island. At issue is whether the gangs and the
work they performed are authorized by Rule 89, which reads, in pertinent part:
"AMTRAK may establish one or more of the following units not
assigned to fixed headquarters to work over Amtrak's present
Northeast territory: MBTA, Albany, Northern and Southern Districts
as herein provided:
1. Ballast Cleaner, Speno, Rail; Pick-up Train, or other large on
track units.
2. Rail Surface Grinding Train.
3. Rail Laying Train.
4. Track Welding and Grinding:
5. Structural Welding.
6. Camp Car Cook, Camp Car Attendant.
7. Track Sweeper (on-track).
8. Pile Driver.
9. Track Laying Machine and Track Laying System Support Unit.
10. Track Laying System Welders and Grinders.
11. Track Undercutter Machine.
12. Ditcher Machine.
13. Unimats.
14. MDZ surfacing units.
15. Switch turnout exchange systems.
16. Other high technology machines not on the property as of June
27,1992."
The Organization argues that Rule 89 contemplates the assignment of gangs to
use specialized high technology equipment, including the Switch Turnout Exchange
Form 1 Award No. 39951
Page 3 Docket No. MW-40204
09-3-NRAB-00003-070472
(07-3-472)
System, which the Organization characterizes as a high technology method of
exchanging one switch for another. The Organization notes that item 16 of Rule 89
refers to "other high technology machines," reflecting the parties' understanding that
Rule 89 gangs are restricted to high technology equipment. In contrast, the
Organization maintains, the work at issue involved switch construction using a
common rubber tired crane.
The Carrier argues that Rule 89 does not prohibit it from combining two or
more of the units listed in the Rule. The Carrier contends that the assignment in issue
was covered by rail laying, item 4 of Rule 89; track laying, item 8: and switchiturnout
exchange, item 15. In the Carrier's view, item 16 is irrelevant because it did not
establish the gangs pursuant to item 16.
The language of Rule 89 is ambiguous. It may reasonably be read, as the
Organization reads it, to allow only the functions and equipment literally listed in the
Rule for gangs established pursuant to the Rule and only functions performed with
high tech equipment. It may also reasonably be read, as the Carrier reads it, to
impliedly cover the work at issue. Neither party introduced any evidence during
handling on the prosy, such as evidence of bargaining history or practice on the
property that might
clue
the ambiguity.
Indeed, the
record developed on the
property reminds us of two school children engaged in a dispute in the schoolyard, with
each child continuously shouting his unsupported allegations at the other in
increasingly louder tones.
As the moving party, the Organization bears the burden of proof. Naked
assertions, no matter how often reiterated, are no substitute for evidence of probative
value. We conclude that the Organization failed to carry its burden of proving that
Rule 89 prohibited the assignments in question.
AWARD
Claim denied.
Form I
Page 4
Award No. 39951
Docket No. MW-40204
09-3-NRAB-00003-070472
(07-3-472)
ORDER
This Board,
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
Gated at Chicago, Illinois, this 30th day of September 2001.