NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: On May 10 to 17, 1968 (both dates inclusive) and again on August 13 through 23, 1968 (excluding only the date of August 18, 1968) the Carrier assigned and used outside forces (R. H. Bogle and Company) and Carrier officers to perform weed eradication work (spraying) on its tracks and right-of-way. This work assignment was placed into effect without notice to or discussion with representatives of the Brotherhood of Maintenance of Way Employes.
The Carrier owns weed eradication equipment which, until this instance, had been utilized by maintenance of way forces to perform weed eradication work. This was the first time that the Carrier assigned and used outside forces to perform work of this character. The claimants were qualified and available to perform work of the character here involved which heretofore had been historically and traditionally performed by maintenance of way employes under the provisions if Rules 30 (b) and 30 (f).
As can readily been seen from the above record, the Organization has claimed 33 hours over and above the number of hours required to perform the work. In addition, Claimant E. L. Clads was not available for work on May 17, 1968, as he was off on request, without pay, to attend court.
OPINION OF BOARD: The Carrier in this case engaged the services of an outside, independent Contractor for the purpose of chemically spraying weeds, grass and vegetation on the tracks and right of way. The Carrier also utilized some of its officials to supervise this work, all in contravention, as alleged by the Organization, of the existing collective bargaining Agreement to which both contending parties are signatories.
The Petitioning Organization alleges specifically a violation of Rule 1, The Scope Rule together with Rules 30 (a), (b), (c) and (f) of the Agreement.
We will direct our attention to the Scope Rule, Rule 1. It is a general type Rule, which under innumerable decisions handed down by this Board requires that the party alleging a violation of the rule must show by a preponderance of evidence that over a long, protracted period of time, they have performed the work in question to the exclusion of all others. To be sure, the Organization in its submission to this Board has stated categorically that the work has been exclusively, customarily and historically assigned to and performed by the employes on whose behalf the claim is now before us. On the other hand, the Carrier readily admits that the spraying of weeds etc. has been performed in the past by the Maintenance of Way forces, but not to the exclusion of all other employees. We are consequently confronted with two contradictory assertions by opposing sides without substantial evidence having been presented by either side to support their respective contentions.
It is axiomatic that the party alleging the breach of contract, has the burden of presenting evidence sufficiently substantial to enable us to render a sustaining award. We find no such evidence in this case. Since the Scope Rule is the primary rule invoked in this case, we need not direct our attention to the other rules cited by the Organization since they do not become operative until a violation of the Scope Rule is found. We will accordingly 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;