THE ATCHISON, TOPEKA AND SANTA FE
RAILWAY COMPANY
In conclusion the Carrier respectfully submits that the claim of the employes in the instant dispute should either be dismissed or denied in its entirety for the following reasons:
The Carrier is uninformed as to the arguments the Organization will advance in their ex parts submission, and accordingly reserves the right to submit such additional facts, evidence and argument as it may conclude are required in replying to the Organization's ex parts submission or any subsequent oral arguments or briefs placed by the Organization in this dispute.
All that is contained herein is either known or available to the Employes or their representatives.
OPINION OF BOARD: Petitioner alleges that Carrier violated the Agreement when it used Division Bridge and Building Forces to unload and store at the site of work steel bridge material for subsequent use by a System Steel Bridge Gang. This work, Petitioner asserts, "is of the nature and character that has heretofore been usually and traditionally performed by the Carrier's Steel Bridge gangs." Carrier rebuts by avering that:
Thus, on the property, issue was joined as to whether the work, by compulsion of the Agreement, was reserved to employes in "steel bridge gangs." This put Petitioner to its proof.
In 1955, Carrier decided to widen Bridge No. 411.5 at Henrietta, Missouri, to accommodate a passing track extension at that location. The work necessitated the construction of a lateral extension of two abutments and two piers and the erection of a steel superstructure thereon, consisting of three 50 feet steel spans or I-Beams. Division Bridge and Building forces performed the work in connection with the extension of the concrete piers and abutments, completing such work on June 9, 1955.
The steel spans and necessary fittings for the superstructure were delivered to Carrier at Henrietta on October 27, 1955. At that time Claimants, 11'r5s-22 428
employed in Carrier's Steel Bridge Gang No. 2, were engaged in completing work on Carrier's Mississippi River Bridge at Fort Madison. This Gang arrived at Henrietta on November 10, 1955 and proceeded to erect the steel superstructure on Bridge 411.5.
The claimed violation of the contract involves only the work of unloading and placement of the steel spans and necessary fittings for the superstructure after they were received at Henrietta and before arrival of Steel Bridge Gang No. 2 at the site of Bridge 411.5. Instead of unloading the spans and fittings on the ground in the location where the cars on which they were delivered were spotted, the Bridge and Building Force loaded them on a push car which was moved to Bridge 411.5. There the same Force unloaded and stored the materials on the extension to the concrete piers and the two abutments in the approximate position where they would later be used by members of Steel Bridge Gang No. 2. Carrier states that this was done "to avoid a second handling by steel bridge gang employes." It was the moving of the materials to the site of Bridge 411.5 that Petitioner claims to be a violation. In the record Petitioner indicates there would have been no violation had the material been unloaded and stored in the vicinity of the spotted cars in which delivered, with subsequent transportation to the job site by the Steel Bridge Gang.
The issue is whether under the Scope provision of the Agreement, supra, Carrier's "steel bridge gangs" had the "exclusive" right to the work involved in transporting the material for the superstructure from the vicinity of the cars on which it was delivered to Henrietta to Bridge 411.5.
The Scope Rule does not define the work which it encompasses. Such being the case, the weight of authority, founded in prior Opinions of this Board, is that for Petitioner to prevail, it must prove by a preponderance of the evidence, in the record, that historically, traditionally and customarily the work involved has been performed on the Carrier's system, exclusively, by "steel bridge gangs." With this test as our premise, we weigh the evidence in the record.
Petitioner states "The work . . . is work of the nature and character that has heretofore been usually and traditionally performed by the Carrier's steel bridge gangs . . :' Carrier timely denied that statement. Petitioner, therefore, has the burden of proof. 11758-23 429
To prove its statement Petitioner has adduced, in the record, the following:
There is no evidence in the record that the signers of the letters, set forth in paragraphs 1 and 2, above, were qualified to testify to system-wide past practice of the Carrier. We can attach no probative value to this evidence; especially, since the Petitioner, which represents all of the employes of the Carrier in "steel bridge gangs," system-wide, and, therefore, was in a much better position to testify to system-wide practices than individual employes has by the following statement disavowed knowledge of Carrier's system-wide practice:
We find that Petitioner has not satisfied its burden to prove a system-wide practice, by Carrier, which is indispensable to proving the Claim. We will deny the Claim.
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