CHICAGO, MILWAUKEE,. ST. PAUL AND PACIFIC
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: On November 7, 8, 9 and 10, 1960 the Carrier assigned the work of grading for the relocation of a stub track at Glenview, Illinois, to Contractor Roy Strom, without negotiation with or concurrence by the employes' authorized representative.
The work was performed by the Contractor's employe operating a D-6 Caterpillar tractor equipped with a 21/z yard capacity bucket. Thirty-two (32) hours' were consumed by the Contractor's employe in the performance of said work.
The Carrier has a number of crawler tractors located at various points on its property which are frequently used to perform work of the character here involved, as well as a number of front end loaders and bulldozers which could perform this work.
Claim was timely and properly presented and handled at all stages of appeal up to and including the Carrier's highest appellate officer.
The Agreement in effect between the two parties to this dispute dated September 1, 1949, together with supplements, amendments, and interpretations thereto is by reference made a part of this Statement of Facts.
It will be noted that at no time during the handling of the instant case on the property did the employes cite any schedule rules or present any positive and substantive evidence in support of their contentions and claim, but to the contrary all the employes have done is to make unfounded and unsupported allegations that the Carrier violated the agreement without even attempting to substantiate such allegations. It is the Carrier's position that the employes have failed to meet the burden of proof feature in the instant claim in view of which the claim must be dismissed in its entirety.
In support of the Carrier's position in the instant dispute we wish to direct attention to the following Third Division Awards:
In view of the foregoing the Carrier submits that the instant claim is not supported by schedule rules or past practice and the Carrier respectfully requests that the claim be denied.
OPINION OF BOARD: Employes claim that Carrier violated the Agreement by contracting out the work of grading for the relocation of a stub track without negotiation or concurrence by the Employes.
If the work involved were reserved to the Employes by the Agreement, it would be incumbent on the Carrier to justify its departure from such reservation by proving some special circumstances warranting an exception to the reservation contained in the rules. However, Carrier argues that Employes have failed to meet their elementary and original burden of proof on the property by failing to allege the violation of any specific rule and by failing to present any positive and substantive evidence to support their claim.
The record shows that on the property the Employes did not allege the violation of any specific rule. Before the burden shifted to the Carrier to 13283-1s 890
prove that it was warranted in unilaterally removing reserved work from the coverage of the Agreement, it was incumbent on the Employes to show that the work was, in fact, reserved to it under the Agreement; this fact could not be assumed to have been proved simply on the basis of Employe's claim that it was so.
From the record developed on the property we cannot find that the involved work was proved to be reserved to the Employes by the terms of the Agreement. Thus, there was no burden on the Carrier to show special circumstances permitting an exception to such a reservation. Carrier's attempt on the property and in its Submission to demonstrate such special circumstances was not a waiver and did not cancel out the obligation of the Employes first to make a viable case for their 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