(Brotherhood of Railway, Airline and Steamship (Clerks, Freight Handlers, Express and Station (Employes PARTIES TO DISPJTE: (The Western Pacific Railroad Company

1. The Carrier violpted the Scope Rule of the Agreement at Stockton, California when on July 15, 1970, it discontinued a daily physical yard check of Tracks 1;o. 37 and 110. 33 aad in lieu thereof, began compiling lists from YErd Check D:rnished by employes of the Fruit Growers Express Company.

 2. The Western Pazific Company shall be required to return the work of r:-_^.'.cin. y^.rd c!ice'a of Tracks 37 rmd 311· to employes who have customarily end traditionally rerforted such service whenever required by the Carrier, end,

 3. R. Lopstain .shall now be rllo·.:ed ci,$,t (3) hours' at time and one-half rate of yard checker for July 15, July 21 throuE_h 3?_, August 1 through 14, Au~pist 10 through Aurast 21, Aur;ust 2 4 throu;,h 28, August 31, September 1 through 4, .September 8 throu·h 11, 1^70 and for each date thereafter while the violation continues.

 OPIZ;707 OF 90.^3.D: Clair^.at is an Icing -and Report Clerk at Carrier's Stockton
 Yard. In this yard, tracks 37 and 39 are reserved primarily for the use of Fruit Growers Express Cenpany refrigerator cars. For over twenty-five years Pacific Fruit Express Comrsny eupplied Carrier with refrigerator cars, but at a relatively recent (unspecified) time, a new contract was entered into with Fruit Growers Express for this purpose, replacing Pacific Fruit Exj)ress.

 Refrigerator cars placed en Tracks 37 and 38 are inspected for mechanical condition and lic:ted by employees of Fruit Growers Express. The track lists and information relating to the cars' condition are furnished to the Icing and Report, Clerk who prepares lists of mechanical refrigerator cars for the Yardmaster so (-.hat copropriate switching instructions may be issued.


        In addition to the work -performed by employees of Fruit Growers

Express described above (which was identical to work -i-vicusly performed
 by emnloy"n^, of Pacific Fruit Express) the Carrier contends it instructed
 the "yard checkers", in this cRse the Icing and Report Clerk, to make a
 ^hysical check and yre^%re a. list of :racks 37 ^.nd ? to verify. the accuracy
 of t`le ii.^.ts furnished by Fruit Grcwers E: ^^ess fmplry<rs. On July 20, 1970
 the r'iysical checking. of the two tracks ;: ~· to Icing ,·n3 a0-port Clerl, was
 el.t-tea'. :he Carrier contends that th-;s^. :r^s ~'=n° ^ince t;_e du^lication
 of r:-r : v·-r no lonZcr rcnuired .since t_:- eontrrrter'^ _rfor-aion was deemed
 to be ^ccrira.te. T::e Crr·-ni.^.^tion states -._·.t this =tc_.-cnt of the facts is
not accur^.to ir_ t. ._ ,_ -Ihysic^.1 cher'.;inr of tan tt:=~ hall o1ways
 (during t:~% rricr r~^'r~^ ;~r'~ tenllrc) L·c°n drne 1r,- r-_lnyces covered by the
 Agreement.

 First, ^_ tc the facts, there e:_.s no -crition cbolished nor was there any trnn<fer o: wcr-: e;c !iave in this m~at~-r `':~: Plinination of work. fctitione-r h^.,^ ~^..^.~.".i·'.r~ fin -idonce to S".""^rt th- rr`ns;·`,ion i..~1=.t the work was trleitic--lly rne ^-:clunni.v=ly nerfcr.:,~cl. by er~lc-.·Fe.^, co:rcr^d by the A.-recraent. lirthc- ;.·^, `he ur,-~'ni:;zticn :I4e nfrcred: no rvi'ence denying ta.-^.t omp1Cy£e^ rf t'^.r -,.,-0 ".·t;ress r:C.'`ni~^ `I'·.vf t'..:_^C"Ii;~l_`a tee ccntracts chec'^nd the two tar r_ :c.

 =he ~,c^P -'.7 ·· is .-^li^d ocl h. f ;'jo r_:..._,... _ t r_ -~ist:~in its
 nositicn. In ~. r:-r.-.__, , _i._ /~51) in:-o,,r.n-· 1... ._ -;·: ~:-rtier, we found
 that the Sco-,,e Fule _.. ^..f ti),e ~-,.ner: l ';.·.T .^., in ±i:^' t it d-:=s not delineate
 wcr:;. WE, concurr I·ith ';-,7t ro-nrrlixsion. vnffer t~.is t*~of rile it is well
 se':tled that ?--titicner has tnc burdcr. of _ roving th=.t the work in question
 has teen e:cclussivriy _-crformed h-r clerical cs:alcyees, sy,tam wide, by practice,
 custom and i;r^di tior. Lz.on.; the ^ony awards ur:".nlrairc tais principle are
 the fcLowin`. P.l1 in :·olvia^ the Petiticner: 18803. 1!''71, l45r3, 10506, 18061.

 We de not baJ.ieve that the elimination of ur-jecessary work per se constitutes a. threat to the Scope Rule's efffectivernar. In Award 17467 we scid: "We cio not view the inets in thic c^se e.s eetrblishing violation of Eule 1 or my other -ale in the Agreernant. -s^.=ecifieclly, no work: covered by the Agreement wP.s tr^nsfcrred to ennlcje=.^> n.^-t covered thereby. Rather, there was an climinatien of e. duplicaticn of work." See -lso P-nerd No. 15824 smong others.

 since Petiti---^.'r h2.s failed to sunnort its contentions with probative evidence, we r.at deny the claim.
                    Award Number 19599 ?age 3

                    Docket Number CL-19717


        FILINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the aarties 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 ?1, 1934;

 That thi^ Divisicn of the Adjust_-cnt ?;o-.rd has,'Pirisdiction over the dispute involvP4 herein; and

        That the Agreement waz not violated.


                    A 57 A R D


        Claim denied.


                        NATIC~I?·.L P~IL'-.'.,^.·'.D ADJUST!'T:T BOM

                        Ey Cr6cr of Tb?rd Division


ATTEST: 0

      F·aec·i ti ~:, ;.r ·· . _ ~· r^;


rated at ChicnFc, ILlinc_c, I~hi^ 14th ^1.^.n cf February 1973.