OPINION OF BOARD: Respondent St. Paul Depot Company is a facility consisting of a passenger station and a mail and baggage department located at St. Paul, Minnesota. It is owned by eight Carriers, including the Milwaukee and the Great Northern Railroads. One of its functions is the handling and processing of United States Mail, the cost of which is shared by the proprietary Carriers which operate under contracts with the United States Post Office Department.
On October 15, 1959, cars containing mail began to be diverted from Respondent's premises to the Great Northern and Milwaukee Depots in Minneapolis. Apparently this was due to a backlog of mail at St. Paul and to avoid delay in handling and processing mail destined beyond St. Paul to points west.
Petitioner's complaint is that the diversion of mail customarily handled by covered clerical employes of Respondent company consitutes, in effect, a farm-out of work reserved to them by the Clerks' Agreement.
Respondent answers that it entered into no Agreement with any Carrier, including the Great Northern Railroad, to farm out the work; that the Post Office Department had sole and exclusive jurisdiction and control over the movements of mail into and out of Respondent's premises; that, therefore, it had to comply with the orders of the Post Office Department to divert the mail cars to Minneapolis.
The controlling and dispositive question here is one of fact. If, as alleged by Respondent, it had no alternative but to comply with the diversion order of the Post Office Department and that order was, in fact, issued, then it follows that there is no sound basis for the claim because the work was not subject to Respondent's control and could not, therefore, be held to fall within the Scope of the Agreement at the time it was performed. As the Board said in Award 8076 (Referee Bailer)
The record contains evidence of probative value going to the key issue presented. Respondent has introduced a letter from the Post Office Department, dated December 21, 1959, which confirms its contention that the Department ordered the diversion of the mail. The letter is addressed to Respondent's Vice President and General Manager and reads, in full, as follows:
"POST OFFICE DEPARTMENT
Minneapolis Regional Office
512 Nicollet Avenue
Minneapolis 2, Minnesota
Petitioner offers no evidence to refute the aforesaid official statements of the Department. Instead it attacks the letter as having "obviously" been obtained by Respondent to support its defense because, Petitioner says, it was written after the diversion of cars begun and after the claim was filed. Its position appears to be based upon speculation, surmise and conjecture. Mere assertions, standing alone, are not proof (Award 5065). It seems to the Board that Petitioner had the same access to the Department as did the Respondent. It should not have been difficult for Petitioner to have contacted or communicated with the postal authorities in order to obtain evidence corroborating or controcerting that submitted by Respondent. Since it failed to do so, the Board has no alternative but to find that the evidence offered by Respondent is valid and will prevail.
Having so found, it would serve no useful purpose to consider and discuss the other contentions of the parties. On the determinative question of whether the work involved was under the control of this Respondent, the answer, based upon the evidence of record, must be, and is, "No." Therefore, the Respondent cannot be held to have violated the Agreement and the claim will be denied.
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