STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Commencing on March 4, 1957, the work of excavating a drainage ditch between Mile Posts 76 and 78 on the Carrier's Washington Division was assigned to and performed by a General Contractor whose employes hold no seniority rights under the provisions of this Agreement.
The work consisted of the operation of a power shovel in excavating the drainage ditch to the desired depth and width and the placing of the material therefrom on the existing roadway embankment.
The Carrier owned a power shovel (similar to that used by the contractor) which was standing idle, loaded on a flat car, in its Charlotte yard, which had theretofore been operated by its employes in the performance of work of the character described above.
The Claimant, who was a qualified power shovel operator, but who was then working as a crawler crane operator, a lower rated position, was available, ready and willing to perform the power shovel operator's work here involved, had the carrier so desired.
The agreement violation was protested and the claim as set forth herein was filed in behalf of the claimant.
It has been shown that the work of digging the drainage ditch here involved was not embraced in the scope of the agreement in evidence, and that the agreement applies only when operators of machines are utilized. Furthermore, it was not work of the character exclusively performed under an established practice, although it is recognized that in some situations the Carrier has utilized operators in digging ditches when machinery was available for that purpose. In the instant case, though, no such machinery was available and the job was too big to have done by laborers using picks and shovels. A considerable undertaking was therefore involved. There was also a time element involved, in that it was desirable to have the work performed as expeditiously as possible.
It is therefore clear that prior awards of the Board, several of which interpret the agreement here in evidence, have denied claims identical in principle.
The claim and demand being without any basis and unsupported by the plain, unambiguous language of the agreement in evidence, the Board cannot do other than make a denial award.
All evidence submitted in support of Carrier's position is known to employe representatives.
Carrier, not having seen the Brotherhood's submission, reserves the right, after doing so, to make response thereto and submit any other evidence necessary for the protection of its interests.
OPINION OF BOARD: Carrier entered into a contract with William B. Hopke to dig a drainage ditch "at the toe of the fill carrying Carrier's tracks between Mile Posts 76 and 78 on the Washington Division . . . ." The work was urgent "because a very slight fall was available from the ponded area to the point of discharge." The contractor furnished the heavy ditch digging machinery as well as all other necessary equipment, tools and labor.
Employes contend this work belongs to Maintenance of Way Employes under the Scope Rule. In Award 11525, with the same Referee, involving the same parties, the same Agreement and a similar claim involving contracting of work, we said: 11645-25 738
"This Rule does not define the work to be performed by the employes listed therein. It only lists the employes who are covered by the terms and conditions of the Agreement.
This Division has consistently held, in numerous Awards, that where the Scope Rule only lists the employes or the job classifications and not their work, it is necessary to determine whether the work claimed is historically and customarily performed by such employes."
This principle is enunciated in Awards 11128 (Boyd), 10715 (Harwood), 10931 (Miller), 10585 (Russell), 9625 (Begley), 7861 (Shugrue), 7806 (Carey) and others.
Employes have presented no evidence that the work claimed was customarily and historically performed by Maintenance of Way employes. The burden of proving the history, custom and practice is upon the Employes. A mere assertion and the Statement of Claim is not evidence and is not proof of that fact. Awards 11128 and 11129 (Boyd), 11118 (Sheridan) and 10931 (Miller).
Carrier's claim that, in the past, such work had been contracted out to subcontractors, is nowhere denied by the Employes.
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 Employes involved in this dispute are respectively Carrier and Employes 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