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.
Parties to said dispute waived right of appearance at hearing thereon.
On May 7, 1990, Carrier employed an outside contractor, Midwest Commodities, to adjust loads on cars in the "D" yard at Louisville, Kentucky. Two employes of the contractor worked on this task from approximately 10:45 a.m. until 8:00 p.m.
The Claimants were the first two (2) carmen out on the overtime board on May 7, 1990. The Organization contends that they should have been called to perform this work rather than using an outside contractor. In support thereof, the organization cites the Form 1 Award No. 12650
Memorandum of Understanding, dated January 7, 1982 as the basis for its claim. The Memorandum states as follows:
The Organization's position is that the foregoing memorandum guarantees the disputed work to the carmen's craft and prohibits the contracting out of said work. The Organization rejects Carrier's contention that the Memorandum is no longer in effect, and points out that there are no provisions within the language of the Memorandum regarding its termination or expiration. Had the parties intended that the Memorandum expire on a date certain, they would have drafted language so stating, the organization urges.
Carrier defends by asserting that the Organization has failed to meet its burden of proving a contractual violation in this case. It contends that the January 7, 1982 Memorandum was a transitional agreement not intended to extend in perpetuity and that the parties expressly recognized the transitory nature of the Agreement by stating that it was to be a "Transitional Agreement" which would not create a precedent.
Moreover, Carrier argues that no other rules or provisions of the current agreement provide support for the Organization's claim. Therefore, Carrier requests that the Board deny the claim in its entirety.
As Carrier correctly points out, it is incumbent upon the party asserting a claim to substantiate that claim by a preponderance of the evidence. Third Division Awards 16881, 9261, 18515. After careful review of the record in its entirety, we find that the Organization in the instant claim has failed to meet its evidentiary burden.
According to the unrefuted information supplied by Carrier during the handling of this dispute on the property, the work of employees in the carmen's craft on the K&IT was coordinated with that of the carmen of the Norfolk Southern Railway on January 7, 1982. At the same time, all agreements between K&IT and the Organization were canceled, with the understanding that the Norfolk Form 1 Award No. 12650
Southern Railway Agreement would apply to employes of K&IT. 7:n conjunction with this arrangement, the parties also agreed to the Memorandum of Understanding, set forth in full above.
viewed in this context, it is clear that the Memorandum of Understanding sought to insure that, despite the fact K&IT employes would henceforth be covered under the Norfolk Southern Railway Agreement, those employees would nevertheless continue to adjust routine loads "as a transitional arrangement" and "without creating precedent..."
The Organization now, over eight years later, seeks to rely on the Memorandum of Understanding as the basis for the employee's exclusive entitlement to the work at issue. The Memorandum by its own terms, however, expressly states that its terms are not to be relied upon as precedent. Moreover, though the parties did not specify an end point at which time the Memorandum would no longer be effective, the specific reference to the "transitional" nature of the Agreement plainly suggests that it was intended to apply during the period of adjustment following the January, 1982 coordination. Under these circumstances, it is our view that the Memorandum of Agreement did not create a contractual entitlement to perform the work so as to prohibit Carrier's utilization of outside contractors in this instance.
The Organization has also cited Rule 132, Classification of work, but it is apparent that there is no mention of the precise work performed in the instant case. Absent some showing that there was a reservation of work by contract or practice, we must rule to deny the claim.