THIRD DIVISION
(Supplemental)
EMPLOYES' STATEMENT OF FACTS: For more than thirty years section forces have serviced all refrigerator cars passing through the Padu. cah and Louisville Yards when such cars required service thereon. When such service was required during overtime hours, the section forces would be notified accordingly, and they would perform the servicing work involved.
This work method prevailed until late 1960, when instructions were issued by Trainmaster C. E. Bartholomew to Yardmaster L. W. Broughton, which read:
There never has been any question as to the right of section forces to perform work of the subject character at the instant locations until the aforequoted instructions were issued, arbitrarily and unilaterally, changing the recognized and well established method of performing the work in question.
The Agreement in effect between the two parties to this dispute dated September 1, 1934 and amnded September 1, 1949 and Novmber 1, 1950, respectively, together with supplements, amendments, and interpretations thereto is by reference made a part of this Statement of Facts.
POSITION OF EMPLOYES: The Carrier's defense against the instant claim has been the allegation that "the work consisting of checking on heaters in cars of perishables, removal of heaters or placing of heaters in cars, also checking on ice in refrigerator cars and icing of cars, is not work assigned exclusively to any craft of employes, and is not covered by any scheduled rule or agreement with your organization; therefore, I can see no basis for the claim, and same is respectfully declined."
On August 4, 1956, Trainmaster Clayton of the East St. Louis Terminal issued instructions which read:
ify, add to, take from, or write rules for the parties to a dispute. Should the request of the Employes be sustained, your Board would go beyond the function of interpreting existing provisions in the agreement between the parties as delegated by the Railway Labor Act, and in effect, write a new rule into the agreement. The Board is referred to First Division Awards 7057 and 14566 Second Division Award 1474, Third Division Awards 389, 871, 1230, 1609 2612, 2622, 3407 4763, 5079, 6828, 7498, 8219 and 9198, and Fourth Division Award 501 as evidence of such findings.
OPINION OF BOARD: The Organization presents three separate claims to this Board, consolidating all three into one case. The three claims arose an October 31, 1960, December 1, 1960 and January 18, 1961, at the Paducah Yards. Carrier assigned work to be performed on these days to other crafts; said work allegedly belonging to the Claimants of the Maintenance of Way craft. The work referred to in the three claims: removal of car heaters from refrigerator cars closing vents of refrigerator cars, and icing cars which contain perishable commodities.
The Organization contends that the Agreement and past practices reserves the work referred to in the three claims to the section forces and Carrier violated the Agreement by assigning the performance of this work to others than the Claimants.
Carrier contends the work outlined above is that of providing perishable protective service and is of a type that is not performed or assigned to any specific class or craft. The three types of work in dispute are performed as the need arises at various locations on its system and has not been exclusively assigned or reserved to the employes of the Maintenance of way organization, or is such work covered by the terms of the Agreement. No specific rule in the Agreement was cited by the organization to support the three claims.
The Scope Rule of the Agreement is general in terms and the terms do not specify the work reserved to such employes. The Board has interpreted the Scope Rule between these same parties in Awards 12298, 11832, 11784, holding to the principle established by prior Awards of this Division that when the Scope Rule of the Agreement is general in form, the Petitioner has the burden of proving that the work is of a kind that has been historically, customarily and exclusively performed by the Carrier's section forces. Performance alone does not give the Claimants exclusive right to the work.
The Organization submits evidence of instructions issued by the Trainmaster on August 4, 1956, to show assignments of section men to the kind of work involved in this dispute. Also, evidence of instructions issued in late 1960 by the Trainmaster, giving permission to the Yardmaster to use carmen on duty to remove heaters, rather than using Section Laborers, at the penalty rate. In Award 6168, it was held that instructions are not part of any agreement and they can be followed by the Carrier, or disregarded at any time without penalty.
Many of the awards cited by the organization tend to support their position; however, they do not represent the majority of Board Awards which only grant exclusivity to the Organization if the practice is system-wide. See Awards 12787, 10615, 11605, among others. From the factual assertions, it appears that this work has been assigned to different classes, at different locations in the system, and we do not find that said work was exclusively the organization's at Paducah. Award 11441, cited by the Employes, between the same parties, although a different issue, allegedly shows that section forces serviced refrigerator cars in the East St. Louis Yard.
The organization, when the Scope Rule of the Agreement is general in terms, must prove that the work is of a kind that has been historically, customarily, exclusively performed and assigned to the Carrier's section forces. Where the Agreement is system-wide, the Employes must also show the work involved is performed exclusively by the Maintenance of way craft throughout the system. Mere assertions of having serviced all refrigerator cars "for more than thirty years" is not prima facie in meeting the burden of proof. Such assertion alone does not shift or meet the burden as alleged by the Petitioner.
The Board notes conflict between the factual assertions of both parties, but absent proof by the Petitioner, we must deny the claim.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to the 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