(1) The Carrier violated the Agreement when it assigned outside forces (employees of Northeast Illinois Regional Commuter Railroad Corporation) to perform Maintenance of Way work (install gauge ties and re-gauge track) on the Rondout rip track in the vicinity of Mile Post 32.0 on the Chicago Service Area's C&M Subdivision on November 29, 2001 instead of Messrs. J. A. Gresk, S. A. Whedon, J. R. Hess, E. R. Castro and P. L. Poeschel (System File C-40-01-CO80-12/8-00228-067 CMP).

(2) As a consequence of the violation referred to in Part (1) above, Claimants J. A. Gresk, S. A. Whedon, J. R. Hess, E. R. Castro and P. L. Poeschel shall now each be compensated for twelve (12) hours' pay at their respective straight time rates of pay."

On November 29, 2001, the Carrier assigned 9 employees from Metra's

Rondout and Morton Grove crews to install gauge ties and to re-gauge the Rondout rip track located within the Carrier's Chicago Service Area at Mile Post 32.0 of the C&M Subdivision. The Metra employees allegedly used no special tools or

The Organization contends that the Agreement was violated when the

Carrier contracted the installation of gauge ties and re-gauge tracks that is properly reserved to the Organization. According to the Organization, the Carrier had customarily assigned work of this nature to the Carrier's Maintenance of Way Employees. The Organization further claims that the work in question is consistent with the Scope Rule. According to the Organization, the Carrier's Maintenance of

Way Employees were fully qualified and capable of performing the designated work. According to the Organization, Claimants were available, qualified and willing to perform the work involved. In addition, contrary to the Carrier's

position, the Organization contends that the trackage was within the control of the Carrier and therefore, it was required that the work be assigned to members of the Organization. The Organization argues that because Claimants were denied the

opportunity to perform the relevant work, Claimants should be compensated for the lost work opportunities.

Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. The Carrier claims that the work does not belong to the Carrier's BMWE represented Employees under either the express language of the Scope Rule or any binding past practice. Specifically, the Carrier contends that the trackage in question had been transferred to Metra and was within the

control and authority of Metra. Therefore, it was completely appropriate that the work in question was performed by Metra. Further, as the Organization contends that the work in question was not under the control of Metra, there is an

After a review of all the relevant evidence, this Board finds that the

Organization has been unable to meet its burden of proof. The burden of proof in this matter falls to the Organization to prove that Claimants should have been

2001. A review of the facts presented by both sides presents a very different version of the facts. According to the Carrier, the trackage in question was within the

Conversely, the Organization contends that the Carrier had control of the trackage and therefore the work belongs to members of the Organization. It is clear that the facts provided by the Carrier and those provided by the Organization are directly

resolve such a matter. When such a dispute occurs, the Board has no choice but to dismiss the matter. See Third Division Awards 35855, 35497 and 33951. Because

The Claim is dismissed.

ok33ta*y dgned by Steven Bkdg ort aGsteven BiMry q,

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Steven M. Bierig

Chairperson and Neutral Member