'' as Award No. 18144
Docket No. CL-18380
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
John H. Dorsey, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
THE DENVER AND RIO GRANDE WESTERN
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood (GL-6667) that:
1. Carrier violated rules of the current Clerks' Agreement when
it contracted or assigned multigraph work that has been traditionally,
customarily and historicall;J performed by employes covered by the
scope of the Clerks' Agreement to a private firm whose employes
hold no seniority under the Clerks' Agreement.
2. Carrier shall now be required to return the multigraph work
to employes holding seniority under the scope of the Clerks' Agreement.
3. Carrier shall now pay Mr. W. F. Sealy the difference in rate
between position of Assistant Multigraph Operator ($23.75 per day)
and Outside Receiving Clerk ($23.65 per day) beginning April 26,
1968 and continuing until this violation is corrected.
4. Carrier shall now
pE.y
Mr. Lester Dale the difference in rate
between position of Outside, Receiving Clerk ($23.65 per day) and
Helper rate ($22.75 per day; beginning April 26, 1968 and continuing
until violation is corrected.
5. Carrier shall now pay Mr. W. A. Moeller the difference in rate
between position of Multigraph Operator ($25.88 per day) and Shop
Delivery Clerk ($24.05 per day) beginning May 1, 1968 and continuing
until violation is corrected.
6. Carrier shall now pay Mr. Gordon Pixler the difference in
rate between the position of Shop Delivery Clerk ($24.05 per day)
and Sectional Storekeeper ($23.83 per day) beginning May 1, 1968
and continuing until violation is corrected.
7. Carrier shall now pay Mr. W. J. Ladd the difference in rate
between position of Sections! Storekeeper ($23.83 per day) and position of Helper ($22.75 per day) beginning May 1, 1968 and continuing
until violation is corrected.
OPINION OF BOARD:
Petitioner's allegations on which the Claim is
based are set forth in the Claim as filed with the Storekeeper by the Local
Chairman under date of dune 14, 1968:
"On April 26, 1968, Carrier abolished the position of Assistant
Multigraph Operator and on April 30, 1968 abolished the position of
Multigraph Operator_ On May 1, 1968, Carrier removed all multigraph work that was performed by these employes coming under
the scope of the Cle;^ks' Agreement and contracted said work to a
private concern knovz as Pearl-Friedland Company, Inc., 2119 Curtis
Street, Denver, Colorado. This work consisted of imprinting run
envelopes, blank envelopes, printing of all single forms used by the
Carrier up to 11 inchEs by 17 inches in size. The MulLigraph Operator
and Assistant Multigraph Operator also cut these forms and padded
them. Both employes punched the tariffs used by the D&RGW, cleaned
the forms, filed forma and negatives as well as all other incidental
duties required of a Multigraph operation.
This work has been performed by employes covered by the
Clerks' Agreement from the time the first agreement was signed
between the Organization and the Carrier when such work was
formerly performed at the Stationery Department.
Further, such recognition by the Carrier of the fact that this work
has been historically, traditionally and customarily performed by employes covered by the Clerks' Agreement is evident by agreement
signed in 1955 providing for transfer of said employes and work
from the original Stationery Department to the Store Department.
Parts 4, 6 and 7 of this claim are those employes affected by the
Assistant Multigraph Operator and Multigraph Operator exercising
their seniority as a result of the job abolishment. Those employes
also suffered wage loss as a result of the Carrier removing the
multigraph work from the scope of the Clerks' Agreement."
The pivotal issue confronting us is raised by Carrier's defense:
"The multigraph work referred to in your letter has not been
traditionally, customaoily and historically performed by clerks to
the exclusion of others_"
The Scope Rule is general in nature. Consequently, by application of the
established case law of this Board, Petitioner bore the burden of proving, by
substantial evidence of probative value, that the work involved had been
performed, on the property, exclusively by Clerks historically, traditionally
and customarily. Petitioner does indeed recognize this in its Claim letter,
supra.
The "agreement signed in 1955," cited by Petitioner, abolished certain
positions in the Stationery Department under Seniority District No. 10 and
transferred the work of these positions to positions to be bulletined in Seniority District No. 32. This agreement, like the Scope Rule, does not evidence
work exclusively reserved t> Clerks. It merely lists "Title of Position." Therefore, it is without probative value material and relevant to the issue.
18144 10
The record settles into contradictory declaratory statements. Petitioner
failed to support its declarations by evidence of probative value. It, therefore,
failed to satisfy its burden of proof. By logical sequence we are compelled to
dismiss the Claim for failure of proof.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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
That the Claim must be dismissed for failure of proof.
AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 9th day of October 7970.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
18144 11