POSITION OF CARRIER: On April 16, 1958 Signal Department employes were engaged in dismantling and removing old signal apparatus installed on signal bridge at Catasauqua, Pa., and while engaged on this work alleged that Maintenance of Way welder and helper, who had been sent to the signal bridge to remove brace irons which obstructed the view of the new signals that had been installed and which was admittedly Maintenance of Way employes' work, performed signal welder and signal helper's work when they assisted the signalmen by burning off bolts that held the signal mechanism and the signal pole.

In the handling of this claim on the property there was no proof or evidence, other than the claim as submitted, to support the claim that Maintenance of Way welder and helper did assist the signalmen as alleged. There is no record of any instructions being given to the Maintenance of Way welder in the instance of this dispute by any supervisory officer of the Carrier at the point to perform any welding or burning work at the signal bridge other than to cut off brace irons that were obstructing the view, and this was Maintenance of Way work. It is clearly evident that if the Maintenance of Way welder and his helper did perform the work as alleged in this claim, same was performed voluntarily and without knowledge of the Company, or that it was performed at the request of the signal employes themselves who were working at the point at the time to assist them in the work in which they were engaged.

In Award 7793 of this Division the opinion of the Board, in part, reads:

"Prior awards of this Division have held without exception that the burden of proof rests upon those presenting a claim . . . . While the affidavit alleges they assisted water service employes, no showing is made that they were so instructed. We have previously held (Award 4992) that voluntary service, absent direction and authority to perform cannot be asserted to support a claim."

The Carrier expressly denies the allegation of the Organization in this dispute that Maintenance of Way welder and helper assisted signalmen at Catasauqua on April 16, 1958 in performing signalman's work, and in the absence of proof or evidence submitted by the Organization in support of their allegation, the Carrier respectfully submits this claim should be denied .or dismissed.

The facts presented in this submission were made a matter of discussion with the Committee in conference on the property.

OPINION OF BOARD: The Petitioner claims that a Welder and his helper were permitted to burn off bolts holding signal mechanism and to help lower them to the ground, which work belongs to Signalmen under the Scope Rule of their Agreement.

Carrier does not deny that this work was Signalmen's work, but it denied responsibility and refused the claim. The Carrier denied any knowledge that the work had been authorized, and asserted that if it had been done, it was done at the request of one of the Signalmen.

The Petitioner advised the Carrier that Mr. C. Nelson, an official of the Carrier, had authorized the work. The Carrier, however, never denied categorically that a welder had done the work or that Mr. Nelson had ordered it done.

While the assertion by the Petitioner should not be considered conclusive proof, the burden of going forward was clearly shifted to the Carrier. Its failure categorically to deny that Mr. Nelson had ordered the work, or to submit any affidavit or evidence as to Mr. Nelson's rule in this incident when Mr. Nelson was available to it, did not meet its burden. We must hold, therefore, that the facts were as presented by the Claimant and that the Carrier had violated the Scope Rule of the Agreement in authorizing a person, not covered by the Agreement, to perform work exelusively reserved to Signalmen.

The Petitioner, however, has asked that the Signalman, Andrew H. Beatty, be compensated for one day at the Signal Welder's rate and for one day at the Signal Helper's rate.

The record is not clear as to the role of the helper. What is clear is that only one day's work was involved. Mr. Beatty could not have done two men's work on that one day, and to reward him with 2 days' pay smacks of unjust enrichment. We shall award him, therefore, one day's pay at the Signal Weldex's rate.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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

That the Carrier violated the Agreement but that the Claimant is entitled to one day's pay at the Signal Welder's rate.

AWARD