THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of Joint Council Dining Car Employees, Local 495 on the property of the Atlantic Coast Line Railroad Company, for and on behalf of Waiters L. Davis, M. E. Bryant, W. L. Carter, and all other employes similarly situated, that they be paid for the difference between what they earned in extra service and the monthly guarantee of 205 hours per month since May 20, 1963, account of Carrier assigning train porters to coach lunch service in violation of the Agreement between the parties.
EMPLOYES' STATEMENT OF FACTS: The claim underlying this dispute was instituted by the following letter:
3. That in numerous awards all four Divisions have stated the burden of proof of a rule violation on which a claim is based rests with the claimant, and that the Organization has failed to meet this condition.
OPINION OF BOARD: On May 20, 1963, Carrier discontinued dining car service on Trains 75 and 76 and instituted lunch cart service. The food for the lunch cart was not prepared in dining cars. Prior to instituting the change Carrier entered into an agreement with The Brotherhood of Sleeping Car Porters, on April 10, 1963, providing for certain members of that Organization who were employes of Carrier and who were also assigned to the trains involved, to operate the lunch carts. The instant claim arose as a result of those mentioned employes being assigned to do the work involved. The Petitioner contends that its members should be assigned to operate the carts and alleges that as they are not so assigned Carrier is in violation of the applicable agreement existing between it and Carrier.
The record contains unrefuted evidence to the effect that on at least three occasions involving similar situations dating back to mid-1959, Carrier changed the food service on other trains in precisely the same manner as here and without objection from Petitioner.
When we view the rule reference of Petitioner in the light of the absence of a Scope Rule in the agreement and with what must be deemed tacit approval by Petitioner of Carrier's action, as described in the preceding paragraph, we would have reason for concluding that the instant work involved had not been exclusively contracted to Petitioner's members because there is neither direct language in the Agreement nor an opposite past practice or custom upon which to find otherwise. However, any possible reservation which we might have about denying Petitioner's request for payment of the wage losses of Claimants is allayed by reason of the language contained in Petitioner's letter and notice to Carrier of its desire to amend the agreement as provided in Section Six of the Railway Labor Act-quoted below-and by the fact that the notice was given prior to the change in the service.
Please accept this letter as the customary and required thirty (30) days' notice as provided by Section VI of the Railway Labor Act, of our desire to amend the existing agreement now in effect, to comprehend contemplated operation of coach lunch service on trains 75-76 by inclusion of said positions and service under the scope and other applicable rules of the agreement with Dining Car Employees' Union, Local 495.
Your expressed intent to assign these jobs to train porters, another craft and class, constitutes unilateral action to change rules 13902-9 15