SOUTHERN PACIFIC COMPANY
(Pacific Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Traditionally, the work of repairing Carrier-owned office furniture at Eugene and Portland, Oregon, has been assigned to and performed by Bridge and Building Sub-department employes on the Portland Division.
Because of the increasing amount of such work, the Carrier installed, in 1942, the necessary furniture repair equipment, such as sanders, bench saws, jointers, dust proof steel tank for painting, etc., operated by Bridge and Building department employes, at the B&B Shop, Brooklyn Yards, Portland, to expedite the maintenance and repair of office furniture.
This method of repairing office furniture continued until the Carrier issued the following joint instructions to B&B Foremen L. L. Klinge and R. H. Culberson:
in question, and there is no basis for the claim presented, and, in addition thereto, it will be noted that the claimant performed service on his regular assignment on the date of this claim; thus, he suffered no monetary loss as a result of Carrier contracting the furniture work upon which this claim is based.
Furthermore, this board has clearly ruled that where the employes are claiming an exclusive right to perform work, the burden rests upon them to establish the existence of the right, including the existence of the practice upon which the alleged right depends. This rule is stated as follows in Award 6824:
Some of the other important awards of this Division recognizing that the burden of proof rests upon petitioner in a case of this kind are Awards 1604, 2517, 2992, 6748, 6829, 6839, 6844, 8129, 8207 and 8261.
OPINION OF BOARD: On March 18, 1960, Carrier had the work of repairing a typewriter table performed by the Koke-Chapman Office Supply House at Eugene, Oregon.
B&B Carpenter Van F. Peterson makes claim that Carrier violated the Agreement because it failed to assign the work to B&B Employes to whom it belongs under the contract. Furthermore, it contends that this work has been traditionally performed by Carrier's forces at Eugene and Portland.
Carrier denies the claim with the assertion that the work involved is not reserved exclusively to B&B Employes under the Scope or any other provision of the Agreement. It maintains that the Petitioner has failed to establish a right to this work through practice and custom. The proof Petitioner has submitted to support his contention of practice concerns the practice at Eugene and Portland only, and since the Agreement is not a sectional, but a system-wide Agreement, Carrier argues proof of the practice must be on a system-wide basis.
The Scope Rule of the effective Agreement is general in character and does not delineate or grant to the employes a specific type of work to be done by them exclusively. There is convincing evidence, however, of an existing practice of B&B Employes performing work of repairing office furniture on the Portland Division. The conduct of the parties to a contract is often just as expressive of intent as the written word. At Eugene and Portland, the practice of B&B Employes performing this work over a long period of years is evidence of Carrier's recognition of their right to this work. 13572-10 284
For the above reasons, we hold that Carrier violated the Agreement, and the claim is sustained. Accordingly, Claimant is entitled to two hours, thirty minutes' straight time pay.
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 Tune 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
Claim is sustained, and Claimant is entitled to two hours, thirty minutes' straight time pay.