(Brotherhood of Railway, Airline and Steamship Clerks,
 (Freight Handlers, Express and Station Employes
 PARTIES TO DISPUTE :
 (Chicago, Burlington & Quincy Railroad Company

1. The Carrier violated and continues to violate the rules of the Clerks' Agreement effective January 1, 1961, particularly Rule No. 1 - Scope, and Rule No. 3 - Definition of Clerks and Machine Operators, and Interpretation (1) thereto, when, without conference or agreement it arbitrarily and unilaterally required various employes not coming within and under the craft of clerical, office, station and storehouse employees to per:o:.m the work of making physical check of cars at Lincoln, Nebraska for a "check list" to be used in its perpetual car inventory records.

 2. Yard Clerks H. F. Brt, Jr., and A. George shall now be paid eight (8) hours' pay at time and one-half rate of the position of Yard Clerk, Jobs #1414 and #1417, respectively, rated at $22.07 par day, beginning October 8, 1966 and each work day thereafter, Monday through Friday, until the violation is corrected.

 OPINION OF BOARD : Prior to June of 1966, Clerical forces of Carrier at Carrier's
 classification yard at Lincoln, Nebraska physically checked
 and marked cars by station number as they passed over the hump. This function
 was performed for the purpose of classifying inbound trains and separating
 them onto various tracks according to their leqtination. In June of 1966,
 Carrier installed IBM equipment at the Lincoln Yards in connection with its
 perpetual car inventory system (PCI). After the installation of the PCI
 program, moat of the Clerks were relieved of the duties of making physical
 checks and car marking. The Organization contends that Carrier violated the
 Agreement when it abolished positions occupied by Clerks and reassigned part
 of the duties thereof (checking cars aid mal-ing lists of cars for use in the
 PCI system) to Carmen, SwitChmeu, Retarder Operators, and Yardmasters. Carrier
 defends its action in this instance by alleging that the involved work was
 never exclusively performed by Clerical employes or was work never performed
 by anyone prior to implementation of the PCI program; that the work as now
 performed is being performed in the same manner on other of Carrier's locations;
 that any physical car checking remaining is still performed by Clerks; and
 that Carrier has the right, in the interest of economy and efficiency to
 determine the manner in which work operations are performed.


For the reason that the question of Yardmaster performing Clerical work at Lincoln being handled on the property, the same will not be considered in resolving this dispute.

 The Organization claims the involved work on the theory that it has exclusive right to such work based upon the Scope Rule, the Classification Rule, and local past practice. A careful examination of the Scope Rule reveals that it is general in nature, and, therefore, the Organization has the burden of proving exclusivity to the involved work by practice, custom and tradition on a system-wide basis. Although the record is abundant with allegations concerning exclusivity of the involved work, the record is barren of any probative evidence. The Organization has provided the record with certain exhibits showing that Clerks have performed this work; however, there is no proof that Carmen, Switchmen and Retarder Oper
The work being performed by employes of the Carmen's Craft at Lincoln was either performed by Carmen prior to the implementation of the PCI program or was never performed by anyone prior to the implementation of such program.

 The record also bears out the fact that Switchmen prepared Form 4024 many years prior to the PCI program. This PCI program made it unnecessary for Clerks to make a physical check at the involved location. The record discloses that no clerical work was added to Switchmen's duties. Upon invocation of the PCI program, Carrier eliminated the requirement of Clerks making a physical check of cars. There was no transfer of work to Switchmen.

 The record further discloses that the Retarder Operator in "B" Tower has always performed the duty of noting discrepancies on his copy of the train list. After the invocation of the PCI program, he (Retarder Operator) now informs the PCI Clerk of s transfer of work from Clerks to the Retarder Operator in "B" Tower.

 The action taken by Carrier as reflected by the record, discloses that such action was taken in the interest of efficiency and economy. Carrier has the right and obligation to operate efficiently and economically and by having that right, has the prerogative and discretion to make changes, not contrary to the Agreement, in the interest of efficiency and economy.

        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;

                    Award Number 19264 Page 3

                    Docket Number CL-18126


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 Agreement was not violated.


                      A WAR D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 9th day of Jurte 1972.
    LABOR MEMBER'S DISSENT TO AWARD 19264 (DOCKET CL-18126)

    Referee Ritter


Award 19264 (Docket CL-18126) is an unadulterated perversion of the arbitration decisional proce Award 19264 contains sheer nonsense. For instance, in the third paragraph it is written:

      "Although the record is abundant with allegations concerning exclusivity of the involved work, t is barren of any probative evidence. The Organization has provided the record with certain exhibits showing that Clerks have performed this work; however, there is no proof that Carmen, Switchmen and Retarder Operators have not also performed this work."

This is grotesque - obviously, if there is no proof that Carmen, Switchmen and Retarder Operators have not also performed this work, and the Organization has Exhibits showing that Clerks have performed this work, then the record certainly cannot be barren of any probative evidence.

    Probative evidence has three characteristics:


    (1) Having the effect of proof;


    (2) Tending to prove; or


    (3) Actually proving.

The thirty-three Exhibits submitted by the Organization, along with the correspondence exchanged by the parties on the property, have at least one if not all of these characteristics, and th* fact that there is "no proof that Carmen, Switchmen and Retarder Operators have not also performed this work" does not make such characteristics of protative evidence any less valid. To indicate that the evidence submitted is without
 probative value on the basis that there is no juxtaposed contrary "proof" is clearly a manifest The corrupted tests established by this Referee in this case require; first, that the Petitioner prove his case; and second, that he disprove all possible stated or imagined aspects of Respondent's case beyond the rea on silent or non-existent facets.
 For instance, if an individual was charged with the commission of a crime at a certain location on a certain date and time, to prove his innocence of the crime he would merely be required to establish that he was not at the location when the crime was committed. The decisional process would then logically conclude that having established that the charged individual was not at the location on the date and at the time of the commission of the crime, he, therefore, could not have committed the crime. To prove his innocence, the individual would not b2 charged with proving that somebody else committed the crime, or that it was not possible for him to commit the crime were he there when it was committed, or that it was possible for him to be at the location at committed. The decisional process only requires that he establigh that he could not have comm time and location. The .fact that h e did not su'-rrit "cr::of~ :;;,

                        -2- LABOR MEMBER'S DISSENT TO

                        AWARD 1^264 (Docket CL-18126)

other aspects would not fatally destroy his proof of innocence. Anything different is a perversion of the decisional process. Such a perversion we have in the instant Award, as is demonstrated in the above-quoted portio portions thereof which cannot be reconciled with the record. For these reasons, I must vigorously dissent.

                            J . Fletcher,

                            L or r?ember


                              6-13-72


-3- LABOR TU-IBER'S DISSENT TO
 AWARD 19264 (Docket CL-18126)