The Agreement was violated when the Carrier assigned outside forces (Blattner Construction Co.) to perform Maintenance of
bridges and related work) between Mile Posts 00.00 and 155.00 between Laredo and Corpus Christi, Texas beginning July 14, 2006 and continuing (System File WGF-06-04-TMIT04066082).
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.
violation by the Carrier when it assigned outside forces to perform Maintenance of Way work instead of the Claimants. The Organization described the work as ". . . installing pipes and filling bridges, on the Main line between Mile Post 00.00 and Mile Post 155.00, between Laredo, Texas and Corpus Christi, Texas, starting on July 24, 2006 and continuing . . . ." It described the contractor forces as consisting of one Foreman, two Machine Operators and one Laborer performing bridge work, eight hours daily plus overtime. The Organization further alleged that the Carrier failed to provide advance notice to the Organization about this contracting transaction in violation of Rule 29 and the December 11, 1981 BergelHopkins Letter of Agreement.
On December 7, 2006 the Carrier denied the claim on the grounds that the Organization had failed to meet its burden of proof that the named contractor had performed any scope-covered work; that the claim failed to identify the bridges where the contractor purportedly worked; and that there was no accounting for the time expended by the contractor's forces. Finally, the Carrier argued that the Claimants were improper in that they held no B&B Subdepartment seniority and that they were employed at all times relevant to the claim, hence suffered no loss.
In response, the Organization submitted written statements reiterating that the Carrier had assigned the contractor to work between Mile Post 00.00 and Mile
Form 1 Award No. 41280Post 155.00 as well as written statements showing that the Carrier's own employees had performed identical work in the past.
The first question that the Board is faced with is whether the Organization, as the moving party, met its burden of proof. In Third Division Award 31930, we found:
In view of the facts in the record, we find that the Organization's failure to identify with requisite specificity the location or locations where the work in question was allegedly performed is fatal to the claim. Once the Carrier put the basic facts concerning the identification of the work allegedly performed by the contractor and the locations) at which the work was allegedly performed in controversy, the burden shifted to the Organization to prove those factual elements by submission of probative evidence. However, when the Carrier put the Organization to the proof, no further evidence was forthcoming concerning the purported nature and specific location of the bridges) where the work was allegedly performed. In view of the foregoing, we find that the Organization failed to meet its burden of proof. Accordingly, the claim must be denied.
Finally, the Board notes that the issues and arguments raised during the handling of this dispute on the property regarding the merits of the claim were confined to the issues discussed above. Although both parties included additional information and argument in their Submissions and presentations to the Board, we confined our consideration and findings, as we must, to only those facts and contentions that were properly part of the evidentiary record.