CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD
COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: During September and October, 1954 all of the work, except excavating and backfilling, in connection with the installation of drainage facilities at Aberdeen, South Dakota was assigned to and performed by the Carrier's employes.
The necessary excavation and backfilling work was assigned to and performed by the Kyburz Construction Company without negotiations with or concurrence by the employe's authorized Representatives.
Essentially, the work involved the operation of a backhoe machine in the performance of the excavation work, and a crane equipped with a clam shell bucket in performance of the backfilling work. 53 man-hours were consumed by the Contractor's employes in the performance of the above referred to work.
The Carrier bad a backhoe machine as well as a number of drag lines located at various points on its property which are frequently utilized in the performance of excavation work of the character here involved. The Carrier also had on its property several cranes equipped with clam shell buckets
covered by the agreement perform work which the carrier has to offer. Had the carrier been able to offer the work of trenching to Claimant Grey and had Claimant Grey performed that work, then and only then would the Scope Rule apply.
As shown in the Carrier's Statement of Facts the carrier used its own employes to the greatest extent possible in getting the work accomplished and all work in connection with the installation of drainage facilities with the exception of trenching was performed by carrier forces. The carrier's decision to contract the work of trenching was prompted by the following:
The carrier asserts that it has shown by factual evidence that its decision to contract was fully justified and respectfully requests that the claim be denied.
OPINION OF BOARD: The claim is based on the contention that the Carrier violated the applicable Agreement when it assigned the work of excavating and backfilling in connection with the installation of drainage facilities at Aberdeen, South Dakota, to an outside contractor. The gravamen of the Carrier's defense is that employment of the contractor was required because the machine which Carrier deemed necessary for the performance of certain trenching work in connection with the drainage installation, was not available and such a machine could not be obtained by rental without an operator. The Carrier asserts that an off track back hoe machine was required .for the work, that its back hoe machine was then engaged in urgent work elsewhere, that it had on order such a machine which was not delivered until several months after the work was performed, that it was unable to rent such equipment from the contractor and other construction companies on a non-operated basis, and that installation of the drainage facilities had to be completed before freezing weather occurred.
Claimant is a Roadway Machine Operator who holds seniority in Group 1 of the Carrier's Roadway Equipment and Machine Sub-Department. Consid- 9612-13 862
eration of Rules 4 and 46 (f) of the applicable Agreement indicates that operation of the type of equipment referred to and which performs excavating or trenching work is embraced within the scope of the Agreement. Where the work in question is regarded as covered by the agreement, as here, this Division has held repeatedly that the Carrier has the burden of establishing that the prevailing circumstances justified the diversion of the work to a contractor. Awards 4701, 5304, 5470, 5485, 7836, 9566.
Carrier's contention that it was unable to rent the type of machine which it determined was necessary for the work is an essential link in the chain of circumstances relied on by it to show justification for the assignment of the work to the contractor. The defense of lack of availability of the necessary machine is bottomed on that contention as well as the statement that Carrier's only back hoe machine was urgently engaged elsewhere at the time.
The record contains assertions by the Carrier that it was unable to obtain the use of such equipment on a non-operated rental basis from the contractor who performed the work and from other construction companies. However, the record is entirely barren of any probative evidence to support these assertions. Although such supporting factual information was peculiarly with the knowledge and control of the Carrier, no such proof was submitted. In this connection, it should be noted that Petitioner's "Oral Argument On Behalf of Employes" dated February 5, 1957, stated that:
Nevertheless, the Carrier failed to furnish probative evidence in support of its assertions concerning its unsuccessful efforts to rent such equipment even though it submitted a reply dated March 5, 1957 to Petitioner's "Oral Argument" and a reply dated April 12, 1957 to another "Employes' Statement".
In this posture of the record, we cannot find that the Carrier's showing is sufficient to justify its diversion of the work to the contractor. See Awards 7837, 8908. Nor is the fact that Claimant was fully employed on the dates on which the contractor performed the work in itself a valid defense to the claim. See Awards 4158, 4869, 6234, 7836.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and 9612-14 863