Electrical Department employer. Each of the new electric switch heater units (see Carrier's Exhibit "A") utilizes an electric heating element - commonly referred to as `CALItOD" - attached to flange side, "I" section of switch rails, and adjacent to switch rods and operating switch point rods, and is coupled to an automatic control device which senses moisture (snow) and rail temperature (ice). These electric switch heaters are not controlled through the signal system, and, in fact, are not connected to the signal system in any manner whatsoever.
Carrier's records indicate that work on the installation of the electric switch heaters at Emigrant Gap was initiated on September 23, 1964, and completed .on November .6, 1964, with no service performed on Octob-ar 15, 1964, involving a total of 1289!: man hours.
3. By letter dated November 13, 1964 (see Carriers Exhibit "B"), Petitonex·'s local chairman presented to Carrier's Division Superintendent art Sacramento, claim in beba3.C of certain employes (hereinafter referred to as claimants) set forth in the above-gusted Statement of Claim, for two hundred sixty-four (264) hours at straight time rate and sixty-six (G6) hours at time and one-half rate of heading Signalman,. Signalman, and Assistant Signalman, ass the case may be, fox September 21y 22, 23, 24, 25, 28, 29, 30; October 1, 2, 5, 6, 7, 3, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30; November 4, 5 and 6, 1964, based on the contention that the work here complained of was signalmen's work, the Carrier's Division Superintendent advised Petitioner's local chairman by letter dated December 10, 1964. (Carrier's Exhibit "C"), that the claim was denied.
By letter dated December 21, 1964 (carrier's Exhibit "D"), Petitioner's General Chairman appealed the claim to Carrier's Assistant Manager of Personnel, and by letter dated February 19, 1,965 (C'arrier's Exhibit "E"), the latter denied the claim, advising the General Chairman, as discussed in conference, that no work was performed on the electric heaters on September 21, 22, ox October 15, f96-2, for which claim has been made nor do Company records indicate the total number of hours involved in this -work to be 1650 hours, as stated in claim. Copy of General, Chairman's response thereto dated March 3, 1963, in which claim was reduced by twenty-four (24) hours for each of claimants, is attached as carrier's Exhibit "F."
OPINION OF BOARD: Claim seeks reparations fox Claimants herein under Rule 70 of the Signalmen's agreement as a result of Carrier assigning allegedly recognized signal work of installing electric switch heaters at Emigrant Gap, California, to Electricians represented by another Union, on several dates during the months of September, October and Novemlrax 19$4.
It is well settled that Claims before this Board era decided on. the facts in the case before us. It is also well settled that the Petitioner has the burden of proof. Equally well settled is that findings may be made on evidence in the record when such evidence is not denied or refuted.
Carrier submits that the electrical switch heaters herein have no connection witch carrier's signal system. Thus they axe handled by Electricians in the same way as other types of switch heaters having no connection with Signals bane been handled in the past. Carrier contends further that as other employer have always installed independently operated switch heaters nest
tied into Signal circuits the work in dispute was not reserved for Claimants. Finally, Carrier seeks denial of .th,e herein claim on the basis that the traditional, historical assignment of the disputed work to electrical employer under their agreement precludes a finding of merit in this Claim.
The record fails to reveal that Petitioner herein took exception to Carrier's contentions which were raised on the property in timely fashion. Nor did Petitioner submit any countervailing evidence to prove that the work was reserved exclusively to signal forces.
On the state of this record we are constrained to find that Petitioner did not carry the burden of proof required of it. We, therefore, will dismiss the Claim herein solely because of lack of proof.
The possible third party, International Brotherhood of Electrical Workers, was notified of the dispute and made a submission to this Board which is in essential agreement with Carrier's position.
BINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employer involved in this dispute are respectively Carrier and Employer 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
NATIONAL RAILROAD ADJUSTMENT BOARD By Ordor of THIRD DIVISION