(Brotherhood of Maintenance of Way Employee PARTIES TO DISPUTE: (Burlington Northern Inc.

 STATEMENT OF CLAIM; Claim of the System Committee of the Brotherhood that:

 (1) The Agreement was violated when shopcraft forces instead of Bridge & Building Painter forces were used to paint the inside and outside walls of the Diese and floors of the boiler room at Lincoln, Nebraska on may 16, 17, 20, 22, 23, 24 and 25, 1972 (System File 33-P-3/MW-84 (p)-1 11-2-72 B)

 (2) The Agreement was further violated on June 21, 1972 when two shop laborers were used to paint the toilet rooms in the store house office as directed by Storekeeper Sam Tropino.

 (3) Lines West Paint Gang Foreman Conrad Schwartz and Painters E. L. McKinney and S. K. Williams each be allowed pay at their respective rates* of pay for an equal proportionate share of the total number of man hours expended by non-scope employes in the performance of the work described in Parts (1) and (2) above.

 *Straight-time rates to be applied for time worked during straighttime hours; time and one-half rate overtime hours.

 OPINION OF BOARD; Claimants allege that Carrier violated the Agreement
 when shopcraft forces were assigned to paint the in
 side and outside walls of the Diesel Shop, lunch and locker room, toilets
 and floors of the boiler room at Lincoln, Nebraska. The employees assert
 that using shopcraft forces to do this painting violated their scope rule
 and the practice which developed under it on the former Chicago, Burling
 ton and Quincy Railroad. In Award No. 3130, on the former C B & Q, the
 Board found that the Agreement had been violated by the assignment of
 mechanical department employees, rather than maintenance of way employees,
 to perform certain painting in the round house and other buildings at
 Alliance, Nebraska. That award was rendered in 1946. The attention of
 the Board has not been directed to any contractual change which would
 alter the effect of that holding. Accordingly, we find that the Agreement
 was violated by the assignment here in question.

 Carrier has taken exception to the citation of rules by the employees in their submission to the Boa on the property. The Board has many times held that a material change in the claim will divest it of jurisdiction. In this case, however, the


citation of additional rules, which may or may not have been cited on the property, does not operate to work a material change in the claim. In the handling on the property all of the facts and circumstances of the claim were brought to Carrier's attention and the citation of additional rules, which have at al in handling on the property in other than the usual manner. In addition, Carrier has had full opportunity to reply to the arguments advanced by employees in their ex ap rte submission.

 When the case was presented to Carrier on the property, the employees named seven shopcraft painters who allegedly performed the painting in question and, in addition, listed the dates, number of men, and basic and overtime hours worked on each date. The total claim amounted to 168 basic hours and 56 overtime hours. In a letter to the General Chairman Carrier took the posit Diesel Shop area." In addition Carrier noted that on June 12, two laborers painted the toilet rooms in the storehouse office. This apparently confirmed, except for a change in 9-1/2 hours had been used in painting the toilet rooms. During the conference on the property, Carri the persons named. These records included a job charge for each day. That charge in the case of each named employee, shows painting locomotives. Carrier has taken the position that the employees have failed to meet their burden of proof and that, conversely, Carrier has established that no more than 20 hours were expended.

 When the employees furnished Carrier with names, dates, and the number of hours involved in the work, they established a prima facie case. The burden of going forward with evidence to disprove the employees' claim then shifted to Carrier. Carrier's response was to furnish the employees the payroll records previously referred to. Those records conclusively establish the number of hours worked on each date. Neither party has dealt in specific terms with the matter of the job charge. Carrier's record, as furnished to the employees, does include the code used for job charges and, as might be expected, there is no provision in the system for charging time to painting buildings. One can speculate on this matter, but speculation is no substitute for e established a prima facie case, it fell to Carrier to establish, by evidence with probative v question. It did not undertake to do so. The failure of proof, under the facts and circumstances present here, falls not on the employees, but on Carrier.

 The claim will be sustained for the loss of work opportunity suffered by Claimants. The record shows that this amounted to 144 straight time hcurs and 54 overtime hours.






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






                        By Order of Third Division


        ATTEST: Executive Secretary


Dated at Chicago, Illinois, this 18th day of July 1975.