(q) Other work generally recognized as Carmen's work."

The Carrier argues that the Organization needs to show system wide exclusivity for the disputed work and that the evidence shows that the work has been performed at East Deerfield and elsewhere by scope covered and non-scope covered employees. The Organization argues the contrary, asserting that the disputed work is specifically reserved to scope covered employees by the above cited rules and that, in practice, assignments of the work at East Deerfield have followed that classification of work.

The burden is on the Organization to demonstrate all of the essential elements of its claim. Giving the Organization the benefit of the doubt and assuming that the rules specifically reserve the work to the Carman craft, the evidence shows a serious factual dispute concerning the work performed at East Deerfield. Assuming that the work is exclusively reserved by rule to the Carman craft, there is evidence that in the past and on more than an isolated basis, the work has been performed by strangers to the Carmen's Agreement at East Deerfield. Aside from assertions made by the Carrier in its positions on the property, the Carrier provided statements to that effect [emphasis in original]:

"I have been employed by the Boston & Main and/or Guilford Rail System as a Carman, Foreman/Wreck master and Manager Car Maintenance for thirty-three (33) years.

In that time I have worked and/or managed many locations across the system.

I would like to state that in that time and at these many locations, (Boston, Lowell, West Cambridge, East Deerfield, Ayer, Rigby, Waterville, and Bangor) the testing of freight train air brakes has never been the exclusive work of Carmen. Traditionally trainmen have also performed these duties.

I have over thirty-seven (37) years service with the Carrier and its predecessor railroads.

Transportation employees, namely train crew personnel, have in fact coupled train line hoses on cars and locomotives, performed inspections and air brake tests over the years from Bangor, Me. to Mechanicville, N.Y. including East Deerfield, Ma. This work has not belonged "EXCLUSIVELY" to the Carman craft. Although Carmen have also performed this work, the work historically was assigned at the carrier's discretion.

At best then, there is a factual dispute concerning the work perfformed at East Deerfield. If the Organization were correct, the work is exclusively scope covered and has been performed consistent with that classifcation of work. If the Carrier is correct - and even if the work in dispute is specifically reserved to scope covered employees - then the Organization has allowed non-scope covered employees to perform that work over a substantial period of time. That acquiescence in the performance of scope covered work by strangers to the Agreement would serve to bar the Organization by estoppel from now claiming that the work can only be performed by scope covered employees at East Deerfield.

One other factor weighs against the Organization's position. The record contains evidence from the Carrier's officials that during contract negotiations in 1995, the Organization sought to have the exclusive right to the performance of the work involved in this dispute. The record further discloses that the Carrier did not agree to the Organization's proposal. One of the fundamental rules of contract construction is that the arbitration process cannot grant a party that which it could not obtain in bargaining. That rule of construction requires denial of the claim.

Again, the burden is on the Organization to demonstrate all of the essential elements of its claim. Given the evidence presented by the Carrier, the Organization cannot show that its present claim for the work can avoid the estoppel conclusion shown by the Carrier's evidence as well as the applicable rule of contract construction. Given the status of this record, the Organization cannot prevail in this matter. The claim must therefore be denied.

AWARD