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- PUBLIC LAW BOARD N0. 2142
Award No. 10
Case No. 2
Docket No. MW-1083
Parties Brotherhood of Maintenance of Way Employees
to and
Dispute Illinois Central Gulf Railroad
Statement 1. The Carrier violated the Agreement when on October 12, 13, 14, 15, 16; 19,
of 20, and November 3, 4, 5, and 6, 1976, it assigned other than a Maintenance of
Claim Way Employe to perform flagging work related to a track construction project.
2. Trackman James E. Miller be allowed eight (8) hours` pay at his straight
time rate for each of the other dates referred to within Part (1) of this claim.
Findings The Board, after hearing upon the whole record and all evidence, finds that
the parties herein are Carrier and Employee within the meaning of the Railway
Labor Act, as amended, that this Board is duly constituted by Agreement dated
January 23, 1978, that it has jurisdiction of the parties and the subject
matter, and that the parties were given due notice of the hearing held.
The U. S. Army Corp of Engineers in the course of building.a waterway between
the Tennessee-Tombigbee Rivers decided that it would be necessary to reroute
a section of track of the Illinois Central Gulf Railroad. The change was to
commence at Milepost 17. The Division Engineer was requested to provide a
railroad employee to give flag protection so the trains would not strike the
construction equipment working alongside the track. The rev roadbed was
being built by outside forces who were used to relocate approximately 600 feet
of the track within the section territory assigned to Section 85. The Division
Engineer concluded,because of the,potential danger of construction equipment
being hit by trains and train movements being slowed by such construction equip
ment working aiongisde the track it would be better to use a trainman rather
than a trackman to perform the flagging. Accordingly, a trainman was assigned
to the flagging on the days that the construction on the roadbed occurred.
Award No.
to -aly,:)
Page 2
Thus, the issue raised here in whether flagging is the exclusive right of
the Brotherhood of Maintenance of Way Employees.
Here, the burden of proof rests with the Employees to come forth with a rule
in support of their contention, and this they have failed to do.
Consequently, as was pointed out in Third Division Award 18243 (Divine),
where the Brotherhood of Maintenance of Way Employees had similarly argued,
as here, that flagging belonged exclusively to members of their craft, but
had failed to support such contention, held:
" ....Here the Petitioner has presented no evidence whatsoever to
support any contention that the work is exclusively reserved to M
of W employees. Since petitioner has failed to present evidence
that the work is covered by the scope of the Agreement we must deny
the claim."
Also, see Third Division Award 17944 and First Division Award 17331. This
Claim will be denied.
Award Claim denied.
9t
t
L Aa_&~
Jo Palloni, Employee Member
. J. Hag ,Carrier Member
-Arthur T. Van Wart, Chairman
and Neutral Member
Issued at Wilmington, Delaware, April 18, 1979.