BEFORE PUBLIC LAW BOARD NO. 6043
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION IBT RAIL CONFERENCE
and
ILLINOIS CENTRAL RAILROAD COMPANY
Case No. 1 20
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
The Carrier violated the Agreement when it assigned an outside contractor, instead of Claimant B. Kent, to perform the maintenance of way work of flagging on CN property in Cedar Rapids, Iowa on March 28, 29, 30, 31 and April 1, 4, 5, 6, 7 and 8, 2011(System File No. IC-BMWED-201 1-00058).
As a consequence of the Carrier's violation, Claimant is entitled to be compensated for all hours worked by the outside contractor during the claim period.
FINDINGS:
The Organization filed the instant claim on behalf of the Claimant, alleging that the Carrier violated the parties' Agreement when it had outside forces, instead of the Claimant, perform flagging duties in connection with a track rehabilitation project beginning on March 28, 2011, thereby depriving the Claimant of these work opportunities. The Carrier denied the claim.
The Organization contends that the instant claim should be sustained in its entirety because the work at issue is contractually reserved to the Carrier's Maintenance of Way and Structures Department forces, because the Carrier failed to notify the General Chairman in advance and in writing of its intent to contract out this work, because there
is no merit or validity to the Carrier's defenses, and because the requested remedy is proper under all of the relevant circumstances. The Carrier contends that the instant
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claim should be denied i n i ts entirety because t he Organization has failed to mee t i ts burden of proof, because no viol ation of the Controlli ng Agreemen t has occurred in t h is matter, beca use flagging work is not exclusive to the BMWED craft, because Rule 2 and Appendi x C do not apply to this situation, and because the monetar y por tion of the claim is inappropriate.
The parties being unable to resolve thei r dispute, this matter came before this
Board.
This Board has reviewed the record in this case, and we find that the Organization has failed to meet its burden of proof that the flagging work in question belongs to the employees represen ted by the Organization. The Carrier has demonstrated that numerous crafts and employees, as well as subcontractors, have performed flagging duties in the past. Since flagging is not exclusively work performed by the members of this Organization, and the Carrier is not restricted by the Agreement language, this Board cannot find that there was any violation of the Agreement.
The Organization bears the burden of proof -in this type of a case. It has failed to meet that burden. Therefore, the claim must be denied.
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The dai m is den ied.
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