THIRD DIVISION
(Supplemental)
NORFOLK AND WESTERN RAILWAY COMPANY
(Lake Region)
EMPLOYES' STATEMENT OF FACTS: During the period from March 14, 1966 to March 28, 1966, inclusive, employes of Stevens Construction Company performed work of cutting and clearing brush on the right-of-way between Conneaut, Ohio and Euclid, Ohio. The Carrier assigned said work to outside forces without benefit of notice to the Employes and without benefit of discussion and agreement with the Employes.
The brush along the right-of-way had grown and accumulated because of a deferred maintenance program. However, it did not interfere with the safe and efficient operation of trains through the area and did not create an emergency condition. The sole reason for performing this work during this particular period was to create an impression of good housekeeping to the Carrier's president, who was scheduled to pass through this area shortly thereafter.
On March 14, 1966 (the first day on which the violation took place), the undersigned General Chairman informed the Regional Engineer by telephone that the work assignment was in violation of the agreement, and suggested that the violation be discontinued immediately. His suggestion and advice was ignored.
Claim was timely and properly presented and handled by the Employes at all stages of appeal, up to and including the Carrier's highest appellate officer.
There is an agreement in effect between the Norfolk and Western Railway Company-Lake Region (formerly The New York, Chicago and St. Louis Railroad Company-Nickel Plate, Lake Erie and Western and Clover Leaf Districts) and its employes represented by the Brotherhood of Maintenance of Way Employes effective February 1, 1951, (Schedule No. 5.) Copy of that agreement, as amended, is on file with this Board and is, by reference, made
CARRIER'S STATEMENT OF FACTS: The instant dispute involves the interpretation and application of the working agreement effective February 1, 1951, made between the New York, Chicago and St. Louis Railroad Company (The New York, Chicago and St. Louis Railroad Company was merged into the Norfolk and Western Railway Company effective October 16, 1964) and its employes represented by the Brotherhood of Maintenance of Way Employes on the Nickel Plate, Lake Erie and Western and Clover Leaf Districts. Copy of such agreement, as amended, is on file with this Board
OPINION OF BOARD: It is undisputed by the parties that during the period from March 14, 1966 to March 28, 1966, inclusive, employes of a private Contractor, Stevens Construction Company, performed work of cutting and clearing brush and weeds on the Carrier's right-of-way between Conneaut, Ohio and Bellevue, Ohio. The Organization had no notice of the Contractor's work until it had begun. The Organization contends that the use of Contractor's forces, in this instance, was a violation of the Scope Rule, Rule 1-Seniority, Rule 2-Retention in Force Reduction, Rule 11-Roster, Rule 24(k)-Work on Unassigned Days, and Rule 52-Classification of Work, of the Agreement. The Organization further alleges, (1) that the cutting and clearing of brush and weeds from the right-of-way is historically, customarily and' traditionally the exclusive work of Maintenance of Way Employes in the Track Department; (2) that there were Track employes available; (3) that no emergency existed; (4) that Carrier provided tools to perform such rightof-way clearing work; (5) that Carrier caused the heavy growth of vegetation by deferred maintenance which it could have prevented; (6) that the Organization, on the date of the alleged violation so informed Carrier, and (7) that the Organization's active track employes listed on the Roadmaster Seniority Roster be reimbursed, for the period involved, an equal proportionate share of the total number of hours worked by the Contractor's forces.
The Carrier denies all of the contentions of the Organization, and contends (1) that because of the size of the project and the fact that sufficient employes were not available, the use of outsiders on a contract basis was not a violation of any rule; (2) that the claim is not specific as to the individual Claimants; (3) that available employes were already engaged in such project on an overtime basis; (4) that the Organization itself recognizes that such work is not exclusively assigned to Track Department Employee. and that Communications Department employes have also cleared the rightof-way.
The Board must first consider the Scope Rule and Rule 52-Classification of Work. Rule 52 (c) pertains to Track Department employes and when their class of work may be contracted to outsiders.
CLASSIFICATION OF WORK
x s r s ~
The Scope Rule of this Agreement is general in its terms and the terms do not specify the work reserved to such employs. When the Scope Rule is general in nature and does not define the work to be performed by the employes listed or named, nor does it contain any job descriptions, the petitioner not only has the burden of proving by a preponderance of the evidence that the work in question has been traditionally and customarily been performed by them, but, also, that it constitutes work which they have performed to the exclusion of others.
The evidence presented on the property shows that the Carrier did not overcome the Organizations evidence that it had an historical, traditional, and exclusive right to clear brush and weeds from the right-of-way. Thus, the evidence did show that such work was done by the Organization to the exclusion of others.
On the property, the Carrier's main contention was that the work came under the exception set out in Rule 52 (c), which reads:
Carrier alleged that there was not a sufficient number of employes available and those available worked as much as possible and, therefore, suffered no loss. The Carrier is raising an affirmative defense, and has the burden to prove such defense by competent evidence. This the Carrier failed to do.
Mere assertions, self-serving declarations and general statements are of no real probative value to this Board. The fact Claimants were working where Carrier had assigned them does not make them unavailable. (Awards 15497, et al.) The Carrier attempts to raise the contention that the Claimants are too indefinite to be given consideration. The Carrier was furnished a roster containing the names of the Claimants, and the claim reasonably described the Employes so that they could be identified. Carrier should have no difficulty in identifying them by an examination of its records. (Awards 14672, 15333, 15497, et al.)
The evidence not presented on the property will not be considered by the Board.
In view of the evidence presented, the Board must find that the Agreement has been violated and that the claim should be allowed.
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
CARRIER MEMBERS' DISSENT TO AWARD 17051,
DOCKET MW-17573
The Referee properly interpreted the Scope Rule, but from that point on he fell into error. First, and foremost, his conclusion that track employes had historically and traditionally performed the claimed work to the exclusion of others is not supported by the evidence. The record contained evidence that track employes had performed such work, but there was no evidence that they had historically and traditionally performed the work to the exclusion of others.