Public Law Board No. 7104, upon the whole record and all the evidence, finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended; that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing and did participate therein.
On October 5, 2001, the Organization filed the instant claim, contending that Claimants should have been assigned overtime to repair cross level problems on the Peninsula Subdivision on September 28, 2001, work which had been assigned to track inspectors. The Carrier denied the claim on November 27, 2001, disputing the amount of the claim, noting that Claimants were working overtime on the dates in question and denying that any agreement rules had been violated.
The Organization contends that the Carrier violated the parties' Agreement by assigning track inspectors, rather than Claimants, to perform overtime track repair and maintenance work. The Organization points out that Claimants were members of the local section gang, who ordinarily and customarily performed the work on the trackage involved.
maintenance work instead of Claimants, members of the local section gang, who ordinarily and customarily perform such work. Simply put, the Organization states, the Carrier assigned the work to employees other than the regularly assigned section forces.
The Organization points to Section I (a) of Rule 17, which provides that the senior employee in the required job class will be given preference for overtime work ordinarily and customarily performed by them. The Organization points out that Claimants were assigned to Section Force 5GA5 with headquarters in Richmond, Virginia, only 20 miles from the location of the disputed work. Messrs. Rae and Russell, the Organization states, were assigned as track inspectors in the Peninsula Subdivision, and their normal primary duties were to inspect track, not to be used as a section gang. Thus, the Organization concludes, they had no right preferential to that of Claimants to perform overtime track repair work, and its claim must prevail.
As for the monetary aspect of the Claim, the Organization states that the Carrier disputed the actual number of overtime hours, and the Organization requested that the Carrier support its position. It failed to do so, the Organization states, so the number of hours should stand. With respect to the Carrier's claim that Claimants were not available for the disputed work because they were working overtime elsewhere, the Organization states that ample precedent supports its position that Claimants were entitled to a monetary award notwithstanding that they were performing other work assigned them by the Carrier.
The Carrier first states that the Claimants were not available for the disputed work because their regular assignments continued into overtime service on the occasions at issue. Primarily, however, the Carrier contends that the Organization failed to establish that making adjustments in the rail is work which exclusively accrues to the Track Foreman and Vehicle Operator positions occupied by Claimants. All of the employees involved, the Carrier points out, maintain seniority rights on the Peninsula Subdivision and are covered by the Scope of the parties' agreement, but none of the employees have an exclusive right to the claimed work. Track adjustments, the Carrier states, can also be made by Inspectors, Assistant Inspectors, Foremen, Assistant Foremen, Mechanics, Carpenters, Machine Operators and Vehicle Operators, as all are responsible for maintaining the right of way. In addition, the Carrier notes, the Organization has failed to provide any evidence to establish that the disputed work accrues exclusively to Claimants by custom, practice or tradition on a system-wide basis. Therefore, the Carrier concludes, in reliance upon numerous awards, the Organization has failed to meet its burden of proof.
We have carefully reviewed the record in its entirety, and find that the record is insufficient to support the claim in this matter. While the Organization asserts that the local section gang ordinarily and customarily performed the disputed work, and the Carrier was therefore required to assign it to the Claimants instead of the track inspectors, the Organization has pointed to no contract language establishing that this work accrued exclusively to Claimants. Moreover, there is no evidence to support the contention that
