The Second Division consisted of the regular members and in
addition Referee Ben Harwood when award was rendered.
SYSTEM FEDERATION NO. 99, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Sheet Metal Workers)
duty and under pay during the claim period. There is no evidence that, had Mr. Fusco not ;been used, any claimant would have earned more pay than he did earn.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe 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.
In the consideration of this dispute, we find it averred by Carrier at the outset that the claim is barred by Article V of the Agreement of August 21, 1954, inasmuch as the action taken by Carrier concerning which complaint is made occurred May 16, 1963, and the instant claim was not filed until October 14, 1963. Countering this averment the Organization contends that here the dispute concerns a continuing claim within the meaning of Article V. However, in the view we take of the merits of this dispute, it is unnecessary to examine and decide the time limit defect asserted by Carrier.
Although Employes' claim does not specify what type of work was taken "from water service mechanics" and assigned to another craft, it may be inferred that it was work such as would be performed by a Motor Car Repairman Helper. Then later from Employes' Statement of Facts, it develops that such was the case and that an employe named Michele Fusco, previously classified and working .as a "Water Service Repairmen Helper" within the Sheet Metal Workers Organization at Carrier's Twenty-Sixth Street shop in Chicago, had been transferred to "Motor Car Repairman Helper" with a new craft designation in .the Department of Maintenance of Way and had continued the same work as formerly at the same location. The Employes claim that this was "a violation of existing practices and Agreements."
While the record here would indicate that in recent years a considerable amount of the roadway equipment repair work at Carrier's Twenty-Sixth Street shop had been performed by water service repairmen of Claimant's Organization, nevertheless this work had not been exclusively accomplished by said Sheet Metal Workers at said shop, whereas at most points over Carrier's system it had been performed by employes of the Maintenance of Way craft, something which was readily admitted by General Chairman King of the Sheet Metal Workers International Association in his letter, dated April 6, 1965, (Carrier's Exhibit 0), wherein he said: "We do not deny that at most points this is true." And it should be borne in mind, as stated in Second Division Award 4971, . . . "the application of the general provisions of an Agreement are system-wide except as otherwise provided." See also Third Division Award 7031 cited in Second Division Award 2255.
Rule 57 of the applicable Agreement cited by Employes says nothing which in any way covers repair of roadway equipment, unless, as Employes
seem to say, such work can be included in the final words: "and all other work generally recognized as water service repairmen's work." To this we cannot subscribe. But further, Claimants insist, and appear to place paramount reliance upon the allegation, that Carrier has assigned the maintenance and repair of roadway equipment at said Twenty-Sixth Street shop to Water Service employes throughout the past many years and thereby has established an accepted practice. This, the Claimants have the burden of proving. As was said in Second Division Award 4990: "the Petitioner has the burden of proving the work complained of was exclusively assigned to or reserved to the Claimants by Agreement or by custom, tradition and practice." A careful examination of the evidence in the record does not permit us to say that Claimants have sustained this burden as to such work at said Twenty-Sixth Street Shop and further we find that it cannot be said as ;to other points throughout Carrier's system. See Second Division Award 4971.
In our considered opinion, we do not believe this claim can be maintained. It should be denied.