. Award No. 12817


            The Second Division consisted of the regular members and in addition Referee James E_ Mason when award was rendered.


    i


            (Sheet Metal Workers', International ( Association PARTIES TO DISPUTE,, (Norfolk and Western Railway Company


            STATEMENT OF CLAIM:


    ' "1. That the Norfolk anal Western Railway Company,

                    hereafter referred to as the Carrier, violated

                    the controlling agreement dated September 25,

                    1964 as modified by the agreement dated

                    September 4, 1978, Article 2, Section 1 and

                    2, as well as the agreement effective June 1,

                    1939 as subsequently amended and specifically

                    Rules 93 and 94 of the Current Agreement, and

                    Rule 2 of the Wabash Water Service Agreement

                    of 1-26-62.


                    Carrier did enter into an agreement with Natkin Service Company of Kansas City, for the purpose .of installing a new thermostat and thern at the N&W Inn on 3-14-90. The man hours involved in this violation were as follows: 1 man @ 4-1/2 hours. This work as of a type and nature which the Sheet Metal Workers employed at Kansas City do and have done in the past. The same of which Carrier was informed by claim letter dated a-2-90. Exhibit `A'.


                    2. That accordingly, the Carrier be ordered to compensate the following Sheet Metal worker for the total number of man hours (4-1/2) involved in the contracting of this work: Mr. P.C. Morgan, Jr., and that Mr. Morgan be additionally compensated ten percent ('!os) of the total hours as provided for by the Agreement as amended, for the Carrier's violation of the advance notice requirement of. Article 10 of the December 4, 1978 Agreement."

        . . Form 1 _:-:;~ . . Award No:. .:,:I2 81 ;r

        Page 2 Docket Nd. 12713

        95-2-93-2-11.7


          FIND ING S


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

i
 ' The carrier or carriers and the employee or employees involved.
          in this dispute are respectively carrier and employee within the

          meaning of the ?airway 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.


          There is no disagreement on the underlying facts of thi s dispute. At Carrier s Kansas City, Missouri, terminal, the Claimant n.amed herein was employed as a Water Service Maintainer. As such, he was subject. to the Sheet Metal Workers' International Union rules agreement- On the date indicated in the claim, Claimant performed his assigned duties and was compensated for all services performed at his regular. rate of pay.


          The parties acknowledge that on the March 14, 1990, claim date an outside contractor was utilized to perform the work which is set forth in the Statement of Claim. There is no disagreement relative to either the fact that such work was performed or to r.he amount of time consumed or the amount of money involved in the performance of the work.


          The disagreement- between the parties began on April 2, 1990, when the Organization initiated the claim here in dispute by alleging a 'lviolation of Article 2, Section 1 and 2 of the September 25, 1964 Agreement . . . ." The dispute was handled in the usual, manner on the property and, failing to .reach a satisfactory resolution thereon, the Organization by letter dated January 9, 1991, initiated action to submit the dispute to Special Board of. Adjustment No. 570 which was the vehicle created by the provisions of the Sepccmber 25, 1.964 Agreement for final. resolution of such disputes.


          The dispute was still pending with SBA No. 570 when on June 1, 1993, the parties rat the National Level agreed that disputes of this type which had not been assigned to and argued before a Referee at SBA No. 570 could "be withdrawn by either party at any time prior to August 3., 1993." This Agreement provided that written notice of such withdrawal "shall," be given to all parties

          to the dispute including SBA No. 570 "at least fifteen (15) days in advance." The Agreement went on to allow that "a dispute withdrawn pursuant to this paragraph may be refexed to any boards available under Section 3 of the RLA . . .11 (underscore ours for emphasis).

Form 1 ,. ., Award. No..-:: 1ZF117
 Page 3 Docket - N6 : 12713
                                        95-2-93-2-1.17


The Organization, by letter dated June 22, 1993, informed all parties of its intent to withdraw this dispute from SBA No, 570. Subsequently, by letter dated June 28, 1993, the Organization filed a notice of intent to file an ex-pa.rte submission to the Second Division of the National Railroad Adjustment Board in connection with this dispute. Thereupon, the Carrier by letter dated June 79, 1993, took exception to the organization's actions and contended that they (Carrier) wished to move the dispute to an existing on-property Public Law Board rather than to the NRAB where, according to the Carrier, the dispute would "be dumped back into the already overcrowded dockets of the NRAB, where they will languish a great deal longer before they are resolved." The Carrier voiced similar objections on this subject to the Executive Secretary - Second Division. Nonetheless, the Carrier eventually filed their ex-parse submission with the Second Division.


As a threshold argument, Carrier contended that this Board lacks jurisdiction to hear and decide this dispute because "tlhe SMWIA did not comply with the 15 day advance notice requirement required by the June 1, 1993 NRLC/SMWIA Agreement" and therefore this dispute was not properly withdrawn from SBA No. 570 and should be summarily dismissed by this Board.


This Board has difficulty understanding the logic of Carrier's argument in this regard. The June 1, 3.993 Letter of Agreement gave either party to a dispute pending before SBA No. 570 until August 7., 1993, the right to withdraw such cases from SBA No. 570 and gave either party the right to refer such cases "to any boards available under Section 3 of the RLA : . . . " Clearly this Board is a "board available under Section 3 of the RLA." The Letter of Agreement dial not require that there must be mutuality of agreement between the parties relative to which Section 3 RLA Board would be used to refer cases withdrawn from SBA No. 570. Carrier's argument here concerns its anxiety relative to this case being "dumped back into the already overcrowded dockets of the NRAB, where they (it) will languish a great deal longer before they (it) are (is) resolved." Having stated this anxiety, Carrier then demands that the case be dismissed by this Board without consideration of the merits which would, in effect, place the dispute back within the authority of SBA No. 570 where it would again languish without resolution as it had previously.

S

          Form 1 Award. -No. 12 8 1 7

          Page 4 Docket No. 12713

          95-2-93-2-117


          It is this Board's opinion that the Organization exercised their initiative under the June 1, 1993 Letter of Agreement -and gave proper notice to all parties concerned of their intent to withdraw this dispute; from SBA No. 570. The fact that they did not wait a full fifteen days following their notice of intent to withdraw from. SBA, No. 570 before they initiated action to place the dispute before this Board does not, in our opinion, either violate the spirit and intent- of the June 1, 1993 Letter of Agreement car negate this Section 3 RLA Board' s jurisdiction to review the mer:Lts of the dispute. This we will do and thereby eliminate tiny languishing of this issue.


          On the merits, the Organization argued that the work which was performed by the outside, contractor in this instance was work which, they say, was specifically covered by the OrganizatiorL's_ Classification of Work Rule. Therefore, they con.tend, Carrier was obligated by the language of Article II - SUBCONTRACTING of the September 25, 1969: Agreement. to give the Organization a notice of

' .intent to contract out this work and to justify such action under
          the guidelines set forth in Section 1 of .Article II. The

          Organization furthrar argued before the Board that "the employes at

          Kansas City have always maintained the HVAC systems at the N&W Inn

          and have over the years replaced arid installed the very same type

          of thex-mostats. '=


          For their part, the Carrier both on the property and before this Board argued that the work in question is not, either by explicit agreement language or by implication, included Or referenced in the Classification of Work Rule. Carrier during t:ze on-property handa.ing of the dispute presented to the Organization several exhibits which, they say, supports their, position relative to the use of outside contractors to perform this type of work and in support of their position that the employes represented by the Organization have not historically performed such work to the exclusion of all others.


          T3efore the Board addresses the dispositive issues of this case, there is one: ancillary, non-dlspositive issue present 3.n this case which the Board feels compelled to address. During the on-property handling of the dispute, Carrier presented to the organization nineteen. (19) separate photocopies of statements in support of their contention relative to the use of outside contractors to the exclusion of their own employes to perform work similar to that here in dispute. For the first time before this Board, the Organization voiced concern relative to the quality of the photocopies. Upon review of these photocopies by the Board, we are inclined to agree with the Organization's concern.

.:;., Form 2: Award No. 1281-7

 Page 5 Docket No *. 1272.3 '
 95..2-93_7.-11.7 v

 If any party to a dispute before this or any other Section 3 RLA. Hoard wishes to have the Board give serious attention to anal: consideration of the exhibits which they present to the Hoard in: support of their respective positions and arguments, they MUST insure that the copies submitted are legible, clear, easily readable and are pertinent to the issue under consideration.

 Having said that and from our review of the case record as it, was developed during the on-property handling of this case, the Board is convinced that the Classification of Work Rule here involved does not confer or vest within the Claimant an exclusive or contractual right to perform the work here in, dispute. The organization made no apparent effort during the on-property handling of this dispute to either disprove Carrier's contentions relative to the somewhat extensive use of outside contractors to _ perform similar work or to substantiate their own claim to the disputed work by probative evidence. It is well established that unsupported statements and contentions - without more - is of no evidentiary value. The burden of proof is on the one making the claim yr contention. Mere words alleging that a violation has occurred are not proof. Inasmuch as it is the Board's conclusion that the work involved in this case was not reserved to the Claimant by either the language of the Classification of Work Rule or by historic performance by the Claimant or other employes, the advance notice provisions of Article II of the September 25, 1964 Agreement, as amended, were not violated.

 r
 AWARD
              Claim denied.

i
 r O R D E R

          This Board, after consideration of the dispute identified[ . above, hereby orders that an award favorable to the Claimants) not

. be made.

                            NP_TIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Second Division


          Dated at Chicago, Illinois, this 26th day of January 1995.