STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: The claimants have established and hold seniority in Group (A) 4 within the Bridge and Building Sub-Department on the Iron Range Division. The clerical employes, who were assigned and used to perform the work in question, do not hold any seniority under the provisions of the Agreement controlling in this dispute.
The factual situation here involved is partially described in a letter of appeal reading:
The claimants were actively at work on regular assignments in the Bridge and Building Department during the hours when the work, which is the subject of this dispute, was performed.
A copy of the correspondence involved in the handling of the claim on the property is attached and marked as Carrier's Exhibit A.
OPINION OF BOARD: The facts out of which the claim arose are not in dispute. During the period from January 13 through January 24, 1969, three employes represented by the Brotherhood of Railway, Airline, and Steamship Clerks were employed to wash the walls and ceilings of Carrier's Endion Station building located at Duluth, Minnesota.
The Organization contends that this work should have been assigned to B and B forces on the Iron Range Division. Claimants hold seniority as B and B employes, and should have been assigned the work in question. Carrier contends that the wall and ceiling washing was not incidental to painting, and consequently was janitorial work, not reserved exclusively to B and B employes.
The Organization alleges that, as a result of its assigning Clerks in lieu of B and B forces to perform the work in question, Carrier violated Rule 1, Scope Rule, and Rule 29, Classification of Work Rule of the Agreement.
The pertinent provisions of the Agreement relied on by the Organization are as follows:
In order to sustain their contention, the Organization has the burden of proving that the Agreement clearly grants it exclusive right to the work complained of by saying that such work is reserved to the Organization, or, in the absence of such a Rule, it must prove, by probative evidence, that the work is of a kind that has been historically, customarily, and exclusively performed by employes covered by the Agreement.
An examination of the Rules relied on by the Organization fails to produce evidence of exclusivity of the work in question being reserved to B and B forces. The Scope Rule of the Agreement, is general in nature, and under innumerable decisions handed down by the Board, does not grant the Organization exclusive right to the work in question. Nor does Rule 29, the Classification Rule, support the Organization's contentions. It is axiomatic that the mere inclusion of a classification rule, does not, by itself, mean that the work of each classification will be restricted exclusively to the employes of the class. Rule 29 cannot be construed to provide the Organization exclusive right to the disputed work.
It should be made emphatically clear that this decision in no way passes on the exclusivity of washing and cleaning walls and/or ceilings when such work is incidental to painting. That issue was not before the Board.
Since the Agreement does not vest in the Brotherhood the exclusive right to wall and ceiling washing, in order to prevail, the Organization must prove that work of such nature has been traditionally and exclusively reserved to B and B employes. This is a question of fact which must be proven by a preponderance of the evidence.
The Organization proffered no evidence which would shed light on the issue of past practice, and it has long been established by this Board that unsupported assertions do not constitute proof.
The record shows that the Organization failed to sustain its burden of proof and therefore we must deny the claim.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds: