(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of
 Railroad Signalmen on the Southern Pacific Transportation Company:

(a) The Southern Pacific Transportation Company violated the Agreement between the Company and the E by the Brotherhood of Railroad Signalmen, effective April 1, 1947, including revisions, and particularly the Scope Rule, which resulted in violation of Rule 70.
in addition to compensation previously allowed, for the following dates during
 October and November of 1970: October 8, 9, 21, 22, 26, 27, 28, and November 2,
 4, 11, 17, 18, and 19, account employes not covered by the Signalmen's Agree
 ment were used to perform recpgnized signal work covered by the Scope Rule of
 the Signalmen's Agreement. /Carrier's File: SIG 152-280/

(a) The Southern Pacific Transportation Company violated the Agreement between the Company and the E by the Brotherhood of Railroad Signalmen, effective April 1, 1947, including revisions, and particularly the Scope Rule and Rule 70.

 (b) Messrs. L. W. DeMoll, C. A. Franklin, H. Rothman, and B. L. Barnes
 be compensated eight (8) hours per day, in addition to compensation previously
 allowed, for the following dates: October 8, 9, 21, 22, 26, 27, and 28, 1970,
 also November 2, 4, 17, 18, and 19, 1970, account employes not covered by the
 Signalmen's Agreement were used to perform long recog_aized work covered by the
 Signalmen's Agreement. /_Carrier's File: SIG 152-281/

 OPINION OF BOARD: The two claims in this dispute arose from the Carrier's use
 of Water Service Department Employes, not covered by the
 Signalmen's Agreement, for the work of installing propane gas storage tanks
 and piping from tanks to gas fired switch heaters at four locations on the
 Oregon Division, Shasta Seniority District of Carrier. The Organization bases
 its claim on that portion of the Scope Rule reading: " ..and all other work
 generally recognized as signal work performed in the field or signal shops."


      The facts in this matter are not in issue. Signalmen installed zhe new switch heaters at the four locations and ;eater Service Department employes installed the propane storage tanks and the fuel lines leading to the switch heaters.


      Petitioner argues that for more than sixteen years, until the present incident, the work in dispute has been performed by employes covered by the Signalmen's agreement to the exclusion of all other Carrier employes. Io support this contention, Petitioner presented, on the property, signed statements by twenty-one employes stating: "`Je the undersigned employes of =he Signal Dept. of the Shasta Sen. Dist. since 1953 have always set the :ropane tanks and installed the pipe from the tanks to the sw heaters." Teen assuming, arguendo, that this evidence established a consistent local practice, (which it does not do), it is insufficient to support Petitioner's

      ;ument. A practice confined to the Shasta Seniority District certainly does r.._ establish a consistent practice for the Oregon Division much less for all Divisions of the Carrier which employ gas fired switch heaters. It is noted that Carrier uses switch heaters on at least two Divisions.


            In Award 11526, involving the same parties, we said:


            "The Agreement between the parties is system-wide While it

            is true that the Employes do not have access to all of Carrier's

            records, and that it is sometimes difficult to know all that is

            happening in the system, it is nevertheless, the obligation of

            the Employes to make certain that the work belonging to Signal

            men is specifically set out in the Agreement. If it is not so

            set out, then the work belongs to them only if by practice,

            custom, and usage of on the property, work had been done system

            wide exclusively by Signalmen."


      Award 11526 and the many other Awards over the years expressing the same principle are clearly controlling in this matter. Further, with respect to switch heaters themselves, including the installation and maintenance of both gas and electric heaters, involving the same parties, the Boar has consistently denied claims b lack of proof of a consistent system-wide practice. See Awards 19506, 19513, 19185, 18919, 19779, and 19511 among others. We do not find palpable error in the principles expressed in those determinations.


      In this dispute the Organization has shown that the work in the Shasta Seniority District has been performed for over sixteen years by employes covered by the Agree that by tradition, custom and practice, system-wide, the work in dispute has been performed exclusively by Signalmen. In view of the foregoing, this Claim will be denied.


i
                    Award Number 20170 Page 3

                    Docket ::umber SG-19768


        FI::DI::GS: The Third Division of the .-Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier end Employes :;ithin the meaning of the Railway Labor Act, as approved June 21, 193;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                    A Id -A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUST`L.FNT BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 15th day of March 1974.
            Dissent to Award 20179. Docket SG-19768


The Majority in Award 20179 has effectively held that it was the Petitioner's burden to prove the negative side of the question; i.e., the absence of an exception to asserted exclusive practice. It was the Respondent in this dispute that contended that the practice relied upon was not exclusive; in other words, that there had been exception. The Carrier's defense was, therefore, affirmative and required proof, but the record was barren.

    Award No. 20179 is in error, and I dissent.


                                                J


                                    W. W. Altus, Jr.

                                    Labor Mezdber


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