NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
The damaged cars contained such commodities as cloth, washers, yarn, underwear, chairs, wine, clay, towels, foil, pallets, merchandise and juice and were worked (lading transferred) by employes of Manpower, Inc., persons without seniority or other rights under the Clerks' Agreement. Seven employes of Manpower, Inc., worked on February 27; five worked on February 28; five worked on March 1 and six worked on March 2, all in the performance of work, which by history, -practice and tradition, had always been performed by Carrier's own employes, subject to and under the scope and application of the Clerks' Agreement.
Claims in behalf of employes entitled to the work were filed and handled in the usual manner with designated representatives of the Carrier, up to and including the Director of Labor Relations, and were denied at all stages of handling. (See Employes' Exhibits 1(a) through 1(j) inclusive).
CARRIER'S STATEMENT OF FACTS: Springfield, Missouri (239) is the hub of the Carrier's operating system. On February 26, 1967, Carrier's freight train No. 136, operating between Springfield and Kansas City, Missouri, derailed 26 cars at Lamar, Missouri (C-139). The claims before the Board evolved out of the salvage operation that followed.
The contents of nine of such derailed cars were disposed of at the scene of the derailment as outlined in the statement attached hereto as Carrier's Exhibit "A". The Organization does not concern itself with this phase of the salvage operation.
The other 17 cars involved, although heavily damaged, were recoiled and returned by a special train to the Carrier's North Yards at Springfield.
On February 27, 28, March 1 and 2, 1967 the Carrier used casual labor during daylight hours to transfer the lading from the wrecked cars to other cars for further movement as outlined in the statement attached hereto as Carrier's Exhibit "A-1". The claims before the Board grew out of this phase of the salvage operation.
The salvage transfer was made near the Mechanical Department area (Wheel Shop, Car Shop, Rip Tracks and Clean Out Tracks). The transfer of the salvage was under the general supervision of the Carrier's Superintendent Freight Claims and at the expense of the Freight Claims Department.
The point in the Carrier's North Yards where the salvage in question was transferred is located about three miles from the Carrier's Freight Station where the claimant stevedores are employed. Each claimant's status on the claim dates is indicated in the statement attached hereto as Carrier's Exhibit "A-2".
OPINION OF BOARD: Train #136 was derailed near Lamar, Missouri causing damage to a number of cars containing various items of merchandise. The merchandise was transferred from the damaged cars by employes of Manpower, Inc. Petitioners base their claim on the premise that work involved herein was covered by the Scope Rule of the Agreement and Carrier cannot assign said work to others not under Agreement, and by doing so in this instance, Carrier violated the Agreement.
This Board has held that the Scope Rule in the Clerk's Agreement is general in nature. See Award 15695. Thus, it is incumbent upon Petitioner's to prove by competent evidence that the work herein in dispute has been exclusively performed by clerical employees, system wide, by practice, custom and tradition.
A close examination of the record discloses that Petitioners failed to meet said burden with competent and positive evidence of proving "exclusivity" to said work system wide, by practice, custom and tradition.
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