NORFOLK AND WESTERN RAILWAY COMPANY
(Lake Region)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Section Foreman Mike Colby, Section Laborers Miro Turk, Charles Beatman, T. J. Caldwell, A. Carlucci, J. C. Gurto, F. Gurto and Carl McCumber hold seniority within their respective classes on the Lake Erie Seniority Division and are all regularly assigned to a work week extending from Monday through Friday (Saturdays and Sundays are rest days).
On Sunday, March 20, 1966, (one of the claimants' rest days) the Carrier assigned the work of cutting and clearing brush along the right-of-way on the claimants' seniority district to forces employed by Van Sikle Tree and Saw Shop, by Steimor Company, by Giebon of Dunkirk, by Hamtrack and by Davey Tree Experts.
The brush along the right-of-way had grown and accumulated because of a deferred maintenance program. It did not, however, interfere with the safe and efficient operation of trains through the area. The sole reason for performing this work on Sunday, March 20, 1966, was to create an impression of good housekeeping to the Carrier's president who was scheduled to pass through .this area shortly thereafter.
The claimants were fully equipped, available and willing to have performed this work had they been given an opportunity to do so.
OPINION OF BOARD: On the date specified in the claim, Carrier hired independent contractors to cut and clear brush and weeds from the right-of-way between Conneaut, Ohio and Buffalo, New York. Petitioner has alleged a violation of the Scope and other roles of the Agreement.
The overriding rule in this case is the Scope Rule. It is a general rule which in accord with innumerable awards, requires that the Claimants demonstrate by a preponderance of evidence that such work has been performed historically, traditionally, etc. by them to the exclusion of all other employes. Before we can consider other rules of the Agreement, a determination must first be made that the work comes within the purview of the Scope Rule.
As we view the evidence before us, we are convinced that the work in question has been performed by claimants over the years, but not exclusively. The Organization exhibits presented with their Ex Parts Submission, show that claimants have done this type of work, but they do not show that they and their fellow employes have performed the work to the exclusion of other employes including independent contractors. The burden of proof is on the Petitioner. That burden has not been met in this case. We will deny the claim.
FINDINGS: The Third Division of the Adjustment Board, 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