Form 1 NATIONAL RAILROAD ADJUSTML'IdT BOARD Award No. 7951
 SECOND DIVISION Docket No. 7607
 2-ICG-CM-`79





Parties to Dispute: ( (Carmen)


Dispute: Claim of Fmployes:












Findings:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier ox 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.


Diana I1linoi.s on Carrier's single track main line which ran through a cut
 of a hill with 35 foot slopes.. The cars involved were 100 ton loaded grain
 hopper cars. Said cans were ovmed by the Car gill Czra, i n Company, Carrier Is
 wrecking outfit from Centralia, I11inois and Paducah, Kentuc!W were dispatched
 to the scene: of the derailment to clear the mainline. Said wrecking crews.,
 with their derricks, were able to r exail eleven (11) of the derailed cars.

 The reiraining 33 cars were in such a twisted and wrecked condition that the derricks were only capable oz" pushing the said twisted cars a~vra,y from the right of way.
 Form 1 Award No. 7951
 Page 2 Docket No. 7607
 2-IC c-Cry- t 79

 After the main line was cleared, supervision surveyed the area and examined the remaining 33 wrecked cars. It was determined that the cheapest, the safest, and most expeditious manner to remove such cars would be that such cars must b e cut and scrapped at the location where the derailment occurred. The Carrier (determined that they lacked the capacity to do it themselves and) engaged ITuLcher Emergency Railroad Service to do the entire scrapping and clean up operation. Hul.cher was scheduled to begin on January 1, 1976. However, because of the snow and rain, the colrLmencement of such operations were delayed for approximately two months. Hulcher cozrnnenced cutting up the cars on T:1'arch 1, 1976, The twisted and wrecked cars were each pulled up to the top of the hill, cut up and then brought down the hill and loaded into railroad cars. Such scrap was sold and directly shipped to a scrap dealer. It took Hulcher eleven days to remove: the thirty-three wrecked cars.

 The E~nployees allege that Carrier violated Rules 32 (Seniority), 33 (Assignment of work) and 127 (Classification of 1^;ork) of the Schedule of Rules when it "improperly assigned other than careen to dismantle thirtythree (33) cars of a forty-four (4+) car derailment at Diana, Illinois." Further, the Union alleged that Carrier's local supervision failed to timely decline the claim., thus making the claim valid under Schedule Rule 37.

 Carrier contends that the claim is before the wrong forum, that the dispute properly belongs before Special Board of Adjustment No. 570, which Board was established under the provisions of the September 25, 1961+ Agreement, Said Special Board has exclusive jurisdiction over disputes arising under that Agreement. The instant dispute arises under the September 25, 1961+ National Agreement. Hence, this Division therefor has no jurisdiction to determine issues in respect to the merits of the dispute.

 The issues formulated herein are (1) whether the claim was timely declined by local supervision (2) whether the Second Division has jurisdiction in cases stemming from alleged violations of the September 25, 1961+ Agreement,, (3) if (2) is in the affirmative, then whether the Union has assumed the burden of proving that "scrapping" or "dismantling", as the case might be, the 33 freight cars is work exclusively reserved to carmen.











Form 1 Award No. 7951
 Page 3 Docket No. 761
 2-IC G-C M-' 79
 " presented but this shall not be considered as a precedence of
 a waiver of the contentions of the Carrier as to other similar
 claims or grievances." Underscoring supplied.

 The Local Chairman, under date of July 2, 1976, appealed the instant claim, which had been denied by the General Car Foreman, to the Master Mechanic. The Director of Labor Relations telephoned the General Chairman on September 7, 1976 and inquired what he contemplated doing about the claims of Tiulcher Inergency Rail-road Service dismantling the thirty-three (33) cars involved in the derailment at Diana, Illinois. The General Chairman advised that such claim had not yet left the local level and was not properly before him. The Director was alleged to have advised that the claim had been declined by the Master Mechanic on July 15, 1976. The General Chairman contacted the Local Chairman who advised that the claim had not yet been denied by the Master Mechanic and that in fact, he was that date, making demand on the Master Mechanic for payruent under a time limit rule violation. Such de?hand was made of the MI-aster Mechanic on September 7, 1976 and was personally delivered by the Local Chairman. The claim was then forwarded to the General Chairman, on September `lth along with a copy of such demand of payment.

 The Master Mechanic, under date of September 7, 1976, sent a letter by Certified Mail,, stating that he was attaching a copy of his letter of his declination, dated July 19, 1976.

 The Director of Labor Relations, in answer to the appeal letter of the General Chairman, dated September 10, 1976, insofar as this issue is concerned, advised that the Master Mechanic had read and declined the appeal on July 19, 1976, which. was well within the sixty day time limit. He attached thereto copies of statements from several employees attesting therein to their participation in the preparation and delivery of the July 19, 1976 letter in the customary manner. The General Chairman asserted that there had been other incidents wherein the Master Mechanic failed to comply with the sixty (60) day time limit rule and when such alleged failure eras called to his attention, said Master Mechanic., allegedly would then forward a copy of the letter which he would allege that he previously had sent.

 Thus, the Board, is left with. weighing the certification, in lieu of oath or affirmation, of the three employees who stated that they had participated :in preparing and delivering the July 19, 1976 letter of denial to the Local Chairman's desk, in the North Yard, Carmen's building, who incidentally was on vacation, against the single unsubstantiated employee assertion as to the Master Mechanic's alleged "moths operandi". We are impelled to conclude that the weight of proof offered, no matter how suspicious the circumstances may appear, tilts towards the position of the Carrier that the local Chairman's appeal had been timely declined. There is a presumption, although rebuttable, that people are honest. Here one party (Carrier) made an offer of proof as to its contention. The other party (the FInployes ) failed to offer any.
 Form 1 Award No. 7951
 page 4 Docket No. 7607
 2-IC G-CM-' 79

 We must conclude, as to the jurisdiction of this Board to handle this claim, that the record amply supports the position that this is a dispute involving a question concerning the "contracting out" of work. In fact, the General Chairman asserte3 that Carrier eras not in compliance with Article :TT of the National Agreement'dated September 25, 1964, when in his letter under date of January 2, ljjo, he had this to say:

Section l of Article VI of of the September 25, 196+ Agreement reads as follows:









This Claim will also be dismissed without prejudice for want of jurisdiction.

    Claim dismissed as per findings without prejudice.

Form 1 Award No. 7951
 Page 5 Docket No. 7607
 2-ICG-Cry- t 79
 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Second Division

 Attest: Executive a--cretary
 National Railroad Adjustment Board

                              12


By /?.~
 R semarie Branch -- Administrative Assistant

 Dated at Chicago, Illinois, this 13th day of June, 1979.