(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The Agreement was violated on May 24, 25, 29, 30 and June 6, 1973 when track employee were used to perform out-of-face cross-grinding of rail ends.

 (2) Welder J. E. Scates and Welder Helper D. S. McGinty each be allowed pay at their respective straight-time rates for an equal proportionate share of the total nu
OPINION OF BOARD: The dispute herein relates to track maintenance work.
 Petitioner asserts that Carrier improperly assigned members of a track gang to perform out-of-face c as the use of a "slotter" which does not involve the welding process and which work was purely track maintenance and incidental to the work of a trackman.

 Both parties to this dispute raised issues and contentions, which were not presented on the property, in conjunction with their submissions to this Board. In accordance with well established practice and precedent such issues may not be considered.

 Petitioner relies principally on the Scope Rule of the Agreement and contends that the work involved was work customarily and historically performed by and reserved to the welding class of employes. The Organization also refers to the Grin in paragraph (f)of the Scope Rule. In its handling on the property, Petitioner referred to and quote welders and helpers to the effect that welding and cross-grinding of rails have always been performed by members of the welding department. Carrier asserts that only two statements were quoted on the property and none were ever submitted to Carrier; the inclusion of this new evidence in conjunction with the submission is manifestly improper. Petitioner has also cited the Seniority Rules in support of its position.


Carrier, on the property, argued that the work in question involved no welding and was not reserved exclusively. No evidence in support of these contentions was presented, giving rise to Petitioner's argument that Carrier's position was grounded on assertion rather than evidence.

 The Scope Bile of the Agreement is clearly general and reserves no work, per se, to any class of employe. Since seniority rights can only be considered when the right to the work is established (see Awards 15943, 17943 and 20417), it was incumbent on Petitioner to present evidence and argument that the work was reserved exclusively to welders (and/or grinders). We cannot agree with Petitioner's contention that there was an unchallenged showing of exclusive performance by welding forces. The two statements quoted on the property cannot be construed to establish a system-wide exclusive past practice signing the statement.

 We have previously considered the Scope rule of this Agreement and have characterized it as a general rule which does not define or reserve work (Awards 17538 and 17711). The burden was on Petitioner to establish by evidence the existsace of a s proof was not met and for this reason the Claim does not have merit (Award 19921 among many others).



That the Carrier.and the Employee involved in this dispute are respectively Carrier and Employee 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








        ATTEST: Executive Secretary


Dated at Chicago, Illinois, this 14th day of June 1976.