NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the work of driving piling at Mile Posts B-130, Pole 12 and Mile Post 138, Pole 1/2 was assigned to outside forces (System file K 310-23).
(2) The decision by General Manager K. D. Hestes dated January 2, 1968, was not in conformance with the provisions of Rule 12, Section 2(a) of the Agreement.
(3) Because of the violations referred to in Parts (1) and (2) of this Statement of Claim, the claim * as presented by Assistant General Chairman T. G. Hawkes, Jr. within a letter dated October 10, 1967, be allowed as presented.
EMPLOYES' STATEMENT OF FACTS: The claimants are regularly assigned to their respective positions, with a work week extending from Monday through Friday.
A government flood control project required the driving of piling for false work for a stop gap in the Atchafalaya floodway levee at Mile Post B-130, Pole 12, near Melville, Louisiana, and at Mile Poet 139, Pole 1/2 near Palmetto, Louisiana. The Carrier assigned the aforedescribed work to outside forces who do not have any seniority within the Maintenance of Way
OPINION OF BOARD: The Carrier contracted some pile driving work near Melville, Louisiana to outside forces who do not have any seniority within the Maintenance of Way department.
We comprehend the controlling question to be whether the issue of Carrier's right to contract this work out is properly before this Board and if so, who has the burden of proof.
The Organization contends that Carrier had admitted that the work involved is covered by the Scope Agreement but has relied upon a past practice of contracting out this work which it has the burden of proving. This contention is based upon the only statement made on the property which tended to raise the issue of contracting out.
That was the statement made in the letter of the Director of Labor Relations dated March 4, 1963 wherein it was stated:
Oragnization says that this statement amounts to an admission that the employees have the right to perform the work in question and in avoidance of liability the Carrier asserts an affirmative defense which is the Carrier's burden to prove.
On the other hand the Carrier says that it has raised the following issue, i.e.: In the absence of any language in the Scope Rule which would grant exclusivity of work to M of W employes, the employes must show by competent evidence that they have had exclusive right to the performance of certain work by practice, history, custom or tradition. On this issue the Carrier contends that the Organization has the burden of proving that Carrier does NOT have the right to contract out.
The statement in question is not a clear and comprehensive declaration of the issue of contracting out. It does however, provide the organization with notice that the Carrier will rely upon its right to contract out as a defense to this claim. The source of this right (i.e. the Scope rule which does not grant exclusivity of work to the claimants) is not made known to the Organization but that it not a prerequisite to raising the issue before this Board.
Organization attempts to limit Carrier's use of this issue by characterizing it as an affirmative defense which Carrier must prove. To sustain the Organization on this point would be to give undue weight to a technical rule of procedure. Carrier's right to contract the subject work to outside forces is before this Board for all relevant purposes.
The Carrier has cited a line of cases involving the same parties and substantially the same contractual provision and we see no reason to depart from the holdings of those cases. The latest such case is Award No. 17638 which held: