Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43649 Docket No. MW-43446 19-3-NRAB-00003-160155

The Third Division consisted of the regular members and in addition Referee Gerald E. Wallin when award was rendered.

(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(CSX Transportation, Inc.

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when on March 4, 2014 the Carrier assigned outside forces (Tapley Construction) to perform maintenance of Way work weed eating in the Tunnel Track in the Rice Yard in Waycross, Georgia on the Jacksonville Division on the Atlanta Waycross Seniority District Mile Post AN 587.7 (System File B14905614/2014-166419 CSX).

(2)As a consequence of the violation referred to in Part (1) above,

Claimants T. Boyd, Z. Johns and R. Chancey shall '... be compensated Eight (8) Hours Straight Time and Two (2) Overtime each, at their respective rates of pay and all time be credited towards vacation and retirement, account of the carrier's violation of the rules of the working agreement and this obvious loss of work opportunity.'"

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.

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 critical issue in this dispute is whether the work was reserved to the Organization's members via the Scope provisions of the Agreement or was subject to an exception in a Memorandum of Agreement that reads, in pertinent part, as follows:

• * *

"5. Contractors may perform cutting of ornamental lawns."

• * *

The Carrier's submission in this matter contains several oddities that suggest there was a lack of attention to detail in the handling of the matter on the property.

The claimreferenced in the above Statement of Claim was dated April 21, 2014. The substance of the claim made four assertions: First, the work was weed eating. Second, the work was performed in the Tunnel Track area in Rice Yard. Third, the Claimants had performed the work in the past. Fourth, the requested remedy was eight hours of straight time and two hours of overtime for three Claimants.

According to the date stamp, the claim was received by the Carrier on April 24, 2014. However, the Carrier's response is dated April 20, 2014, which is one day before the date of the claim and three days before it was received by the Carrier.

While the Carrier's response raised the affirmative defense of the ornamental lawn cutting exception, it contends that the defense was based on an attached statement of the applicable roadmaster. However, the Carrier's submission does not contain any such attachment to the response.

The Organization thereafter requested a discussion. Both parties' submissions contain the Organization's April 30, 2015 letter showing the claim was discussed on October 28-30, 2014 in Jacksonville, Florida. The letter also takes exception to the assertions made in the Carrier's subsequent letter dated December 2, 2014. The Carrier's submission does not contain the December 2, 2014 letter.

The Carrier's submission next contains a letter dated March 17, 2015. However, this letter contends the claim was discussed in January of 2015 in Hendersonville, Tennessee. It makes no reference to the October 2014 discussion in Jacksonville. This letter, once again, asserts the application of the ornamental lawn cutting affirmative defense. Once again, the letter references the attached statement of the roadmaster. Once again, the Carrier did not attach the alleged statement.

The Organization's April 30, 2015 letter also attached three statements from its members concerning the disputed work. They confirmed the location of the work on the Tunnel Track and around the hump at Rice Yard. The statements also made two significant assertions. First, "... there is no ornamental grass in either location." Second, three named Carrier officials, one of which was the applicable roadmaster, "... all agreed that this was our work ..." The Carrier never acknowledged the three statements or refuted any of the assertions made in them.

Although it was neither attached to the Carrier's submission nor identified as the missing statement of the roadmaster, the Organization's submission does contain an email. From the text of the email thread, it appears a Carrier official sent a copy of the initial claim to the roadmaster on Friday, May 23, 2014. The thread reads, in pertinent part, as follows:

"[to the roadmaster]

3 employees are claiming against Tapely weed eating in the tunnel track at Rice Yard. Was this ornamental? Part of a project?"

The roadmaster's reply the same date was this cryptically ambiguous one liner:

"Looks like the place was ornamental and a place the union agreed upon."

At best, the roadmaster's response is unhelpful. It totally lacks any foundation information to show he had any first-hand information. Moreover, it does not refute any of the four key assertions made in the initial claim. In addition, it predates the statements from the three employees that provided significant detailed assertions about the claim. As previously noted, the Carrier never refuted any of the assertions in the three statements in any later response.

It is clear that the disputed work in question was reserved to the Organization's members by the provisions of the Scope language of the Agreement unless it was covered by an exception that constituted an affirmative defense. It is well settled in dispute resolution that a party claiming the protection of an affirmative defense must bear the burden of proving its right to access the defense.

On the record before this Board, we find the Carrier has failed to satisfy its burden of proof. As a result, the claim must be sustained. And because the Carrier never challenged the remedy requested by the claim, the claim must be sustained as presented.

AWARD

Claim sustained.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 17th day of May 2019.