The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Lobar Act, as approved June 21, 1934.
The Organization filed the instant claim on behalf of the Claimants, alleging that the Carrier violated the parties' Agreement when it failed to call and assign them to perform certain work associated with the Herzog Ballast Train, and instead assigned a Track Inspector to perform the work. The Organization further alleges that the Carrier failed to disallow the original claim in accordance with Rule 49.
The Organization contends that the claim should be sustained in its entirety because (1) the Carrier failed to disallow the appeal in accordance with the time limits set forth in Rule 49 (2) the Carrier violated the Agreement when it failed to call and assign the Claimants to perform the work at issue and instead called and assigned a Track Inspector to perform the work, and (3) there is no merit to the Carrier's defenses. The Carrier counters that the claim should be denied in its entirety because (1) stare decisis warrants dismissing the claim in that a prior Award specifically held that monitoring the dumping of ballast by a ballast train is neither scope-covered work nor exclusively reserved to BM'WE-represented employees (2) the Organization failed to satisfy its burden of proof in this jurisdiction of work dispute (3) the Carrier did not violate Rule 49 in its handling of the claim, and (4) the remedy sought by the Organization is improper.
The Board reviewed the procedural argument raised by the Organization, and finds it to be without merit. The Organization contends that the Carrier failed to notify former General Chairman Morgan of its disallowance of the appeal within the stipulated 60-day time period as required by Rule 49. A thorough review of the record makes clear that General Chairman Morgan filed the original claim on June 1, 2010. Form 1
Morgan, on September 8, 2010, appealed the denial. The Carrier timely responded to that appeal with a letter to General Chairman Morgan in Colorado Springs an November 5, 2010. We find that the Carrier complied with the contractual requirements of Rule 49 and, therefore, there is no basis an which to sustain the Organization's procedural argument.
With respect to the merits, we find that the Organization failed to meet its burden of proof that the Carrier violated the Agreement when it failed to call and assign the Claimants to monitor the progression of and perform the necessary work associated with the Herzog Ballast Train an April 7, 2010. The Board finds that the Carrier had the right to utilize the person that was assigned to monitor the dumping of the ballast by a ballast train. See Third Division Award 40895 and Second Division Award 3630.)
It is fundamental that the Organization bears the burden of proof in cases of this kind. The Organization failed to meet that burden in this case. Therefore, the claim must be denied.
