(Brotherhood of Maintenance of Way Employee
 PARTIES TO DISPUTE:
 (Chicago and North Western Transportation Company

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

 (1) The Carrier violated the Agreement when it assigned outside forces to construct a 16' x 32' addition to the Butler Yard Office at Milwaukee, Wisconsin (System File 81-8-165).

 (2) B&B employes V. Walker, G. Leach, G. Aspatore, L. Peterson, E. Gillespie, G. Miron, H. Tapaninen, L. Broederdorf, A. DeGrand, J. J. Schneck, H. Otto, M. Weinberg, A. Rotkovic, R. F. Jablonski, D. Schrader, K. Knaack and E. Pblishak each be allowed pay at their respective atraighttime rates for an equal pr expended by outside forces in performing the work described in Part (1).

 OPINION OF BOARD: This claim arises out of the subcontracting to outside
 forces of the construction of an addition to the Car
 rier's Yard Office at Butler Yard, Milwaukee, Wisconsin. By letter dated
 February 26, 1974 Carrier notified the General Chairman of the Organization
 as follows:



In conference on February 27, 1974 the General Chairman contended that the work should be performed by Carrier's B&B employes under the Maintenance of Way Agreements. At that time there were furloughed B&B employes but these all were recalled by April 10, 1974. Notwithstanding the Organization's protests, Carrier subcontracted the work. Construction


commenced on May 13, 1974 and the yard office addition was completed by employes of the outside contractor. By letter dated June 11, 1974 the Organization filed the instant claim, on behalf of some seventeen (17) named B&B employes of the Wisconsin Division, alleging a violation of the Scope Rule and seeking money damages. The claim was denied at all levels on the property and comes to us for disposition.

 At the outset the organization contends that, by affording the Article IV meeting on February 26, 1974, Carrier tacitly "admits" that the work in question is reserved to the B & B employes. We do not share this view. There is herein no suggestion that Article IV was violated. Rather the Organization urges that by complying with that notice requirement Carrier, ipso facto, is precluded from thereafter subcontracting the work. To state the argument. is to demonstrate its lack of merit. We adhere in this case to the principle announced in Award 20920, to wit: " . . . The giving of such notice, therefore, merely serves as formal compliance with the Agreement; Scope Rule coverage of the disputed work, negatively or affirmatively." (Underlining in original Award)

 Stripped of this erroneous presumption, the case, like so many others of its type, turns on a determination whether the work is reserved exclusively to the employee by express Agreement language or, failing that, by substantial evidence of system-wide custom, practice and tradition. There is no serious argument that the contract by express terms reserves the work to the employes. The need for these employes to look outside the contract's literal language for evidence to carry their burden of proof was established in our early Award 6299 involving the same Agreement and parties as in the present case:



                    Docket Number MW-21334


We look first to the instant record for evidence of reservation of this work to the employes by custom, practice and tradition. In so doing we require for the employee, as the moving party, to carry the burden of going forward with probative evidence to support their claim and the burden of overall persuasion. Not only has the Organization failed to advance competent evidence other than bare assertions regarding past practice, but it has failed to rebut substantial evidence to the contrary offered by the Carrier. Among the Carrier's proffer of proof are prior awards of this Board involving essentially the same issue, parties and Agreement. In those Awards we made certain determinations of fact which are relevant on the central factual issue herein regarding exclusive system-wide practice, custom and tradition. Thus in Award 6299 cited supra we found as follows:

        "The Carrier also makes the positive statement that for thirty years it has been its uniform practice to contract for the construction of new facilities as it did in this case, without any protest whatsoever from the Organization in the past ten years. New contracts have been negotiated between the parties while these practices obtained. The only answers attempted to be made to these showings by the Organization have been a categorical denial and the statement that it cannot be charged with knowled place throughout the Carrier's extensive railway system. However, we can hardly believe that there would be many instances where the erection of a new passenger station would long escape the notice of the Organization's responsible representatives."


Also in our more recent denial Award 13822 dealing with another such claim we stated:

        "The Scope refers to 'Employee ...engaged in or assigned to building, repairs, reconstruction, and operation in the Maintenance of Way Department.' Hence Maintenance of Way employee involved in building work are under this Agreement. However, under the language of the Agreement all building work is not exclusively reserved to Maintenance of Way employee.


        Following a well recognized principle of this Board, Claimants must therefore establish their right custom, tradition, and practice. The record does not disclose such proof. On the contrary, Carrier i there has been a past practice of contracting building construction to outside firms. Furthermore, this practice was continued after the negotiation of a new Agreement in 1961.

                    Award Number 21287' Page 4

                    Docket Number W-21334


        "Awards both in support of and against claims arising from contracting work to outside firms, involving the same Scope. Rule, have been cited by the parties. If any underlying principle is discernible in these awa been cited, it is that the nature of the construction work is the controlling factor 3n the determination of the issue. Generally, claims were denied in which construction of a new structure was involved, while those which involved repairs to or improvement of existing constru such work as tuckpointing, blacktopping, and roofing were sustained. The instant dispute involved the construction of new buildings which was customarily awarded to outside contractors by Carrier."


Given the paucity of evidence adduced by the Organization on these essential points we have no alternative but to conclude the record does not support the employee' claims. In the absence of any proof of exclusive system-wide reservation the offers of proof of availability and ability to perform the work are irrelevant. Carrier raised several issues regarding measure of damages but we do not reach these points herein because we must dismiss the cla
        FINDINGS: The Third Division of the Adjustment Hoard, 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 and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

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

        The Agreement was not violated.


                    A W A R D


        Claim dismissed.


                            RATIONAL RAILROAD ADJUSTIM HOARD

                            By Order of Third Division


ATTEST: ~. 4GaZ4aExecutive Secrdtaxy

 Dated at Chicago, Illinois, this 12th day of November 1976.