NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-18543
William M. Edgett, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
( -Coast Lines -
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned or otherwise
permitted other than B&B forces to repair the concrete floor in the "old wheel
grinding building" at Redondo Junction, California. (System File 130-234-29).
(2) B&B employes L. W. Adams, G. S. Cordova, J. B. Reveles, D. A.
Gilchrist, E. D. Barrera, G. D. Brandon and G. G. Valenzuela each be allowed
eight (8) hours' pay at their respective straight time rates because of the
violation referred to in Part (1) of this claim.
OPINION OF BOARD: Sheetmetal workers of Carrier's Shop Extension Forces removed
a wheel lathe in the Redondo Junction Mechanical Department.
The lathe was located in a 35 by 11 foot pit. After removing it the Shop Exten
sion Forces filled, compacted, and then poured concrete to complete the process of
restoring the floor.
Claimants allege that the assignment of this work to employees not
covered by their Agreement is a violation of Article I - Scope. The Rule reads:
"This Agreement governs the hours of service, wages
and working conditions of employes of the following classes
in the maintenance of way and structures department: Bridge
and building foremen; paint foremen; assistant bridge and
building foremen; bridge inspectors; bridge and building
mechanics; bridge and building painters; bridge and building
helpers; welder gang foremen; welders; heat treaters; welder
helpers; extra gang foremen; fence gang foremen; section foremen;
assistant extra gang foremen and assistant section foremen; fuel
foremen; pumpers and water treaters; roadway machine operators;
section, extra gang, bridge and building, and water service
laborers; fuel station and sandhouse helpers and laborers; track,
bridge, tunnel and crossing watchmen and flagmen and such other
classifications as may be shown in the appended wage scale or
which may hereafter be added thereto."
I
Award Number 19494 Page 2
Docket Number MW-18543
It is apparent from the wording of the Rule that it is one of those
characterized by many decisions of this Board as "general". A general scope rule
will not, of itself, confer exclusive right to the performance of work. A party
claiming exclusive right under a general scope rule must prove, by evidence with
probative value, that it has performed the claimed work exclusively, system-wide
by tradition, custom and practice. That principle is expressed in a line of
cases that represents the decisive weight of authority on the question. Citation
of particular cases has become superfluous. The point is too well established by
the Board to require it.
Claimants recognize, of course, the burden of proof they must meet. To
meet it they assert that Carrier "has by past practice given B&B forces exclusive
right to perform this work." In their submission they further assert that Carrier
did not rebut that assertion. The record, however, does not support claimant on
that point. Carrier did take issue with the "practice or custom" claim when it
stated in a letter to the General Chairman, "...Your appeal claim is not supported
by either the rules of the Foreman's and Laborer's Agreement, past practice or
custom." In any event simply making an assertion does not meet the requirement
that the claimant present evidence with probative value.
The Sheetmetal Workers entered a submission which takes the position
that their Agreement allocates the work in question to them. They also challenge
claimants' contention that practice supports their position. According to the
Sheet Metal Workers "its a common system-wide practice" for them to fill the hole
left when machinery is removed.
The claim must be dismissed. The Scope Rule is of the general type. -
Claimants thus had the burden of proving an exclusive system-wide practice. They
did not dp so.
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:
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 be dismissed..
Award Number 19494 Page 3
Docket Number MW-18543
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:~
Executive ecretary
Dated at Chicago, Illinois, this 17th day of November 1972.