NATIONAL RAILROAD ADJUSTMEN:r BOARD THIRD DIVISION
Award Number 21904 Docket Number MW-21749
Robert W .Smedley, Referee
(Brotherhood of Maintenance of Way Employes PARrIES TO DISPUTE: (
(The Western Pacific Railroad Company
STA?EMEN:r OF CLAIM: Claim of the System Conmittee of the Brotherhood
that:
. ., (1) The Carrier violated the Agreement when it assigned a Mechanical Department employe instead of a Water Service Sub-department employe to repair a diesel oil pipe riser at Oroville, California on January 30, 1975 (System File B•Case No.10013-1975-BMWE, Local Case No.135). .
The Carrier further violated the Agreement when it assigned outside forces to repair the heating units in the Yard Office at Oroville, California on January 31, 1975.
Water Service Maintainer George Saraba be allowed eight (8)hours of pay at his straight-time rate because of the violation referred to in Part (1)hereof and thirty-two (32)hours of pay at his straight•time rate because of the violation referred to in Part (2) hereof.
OPINION OF BOARD : Claim (1), the stand pipe dispute, turns on
Carrier's assertion that an emergency existed. On January 30, 1975, a locomotive struck a tank car on the Oroville, California fueling track, causing a break and spill from a fuel stand pipe. This was within Claimant's responsibility and service area.
He was available to perform the repair. Instead, the Carrier utilized a machinist.
The claim of emergency appears in Carrier's letter answers to the claim on the property. No particulars are given, no proof that an emergency actually existed. We are asked to presume an emergency situation. This we cannot do.
As we said in Award 20310 (Lieberman)quoting Award 13738:
"The record as made on the property contains no factual evidence.to support Carrier's statement that there was an emergency. Whether or not there was an emergency is a
Award Number 21.904
Docket Number MW-21749
Page 2
"conclusion which this Board can find only from facts of
:.. record of probative value. Lacking facts, we must find
: that Carrier's defense of 'emergency'fails for lack of proof."
The·damages asked for violation of claim number (1)are reasonable
and_ necessary for proper enforcement of the Agreement. Claim (1)will be sustained o
Claim (2), the heating units repair, turns on the Union's effort to prove this work necessarily belonged to Claimant. The burden of prof has not been met in this regard. Although Claimant had per formed5 routine maintenance and repair to the piping of these units,
the evidence is that the outside contractor was called due to expert knowledge, equipment and parts for the repair, which involved electro• thermal components.
We quote from Award 20841 (Norris):
" * * * Basically, the Scope Rule and the Seniority Rules cited by Petitioner effectuate and protect the covered employees'rates of pay, promotions and seniority rights. This is a far cry indeed from a Scope Rule which contains specific job description rules and specific reservations of particular work to a designated class or crafto
''We conclude, therefore, that the instant Scope Rule is non-specific and general in nature. In the latter context, we have held repeatedly that where the Scope Rule, as is the case here, is general in nature, the Petitioner has the burden of proving by a preponderance of evidence that the disputed work has traditionally and customarily been performed by Claimants (or the particular craft)on
a system-wide basis to the exclusion of others 'including outside contractors'.
"See Awards 10389 (Dugan), 13579 (Wolf), 15383 (Ives),
15539 (McGovern), 16609 (Devine), 18471 (O'Brien), 18935
(Cull), 19576 (Lieberman)and 19969 (Roadley), among a host of others.
"The record fails to establish that Petitioner has submitted probative evidence sufficient to bring the disputed work within the exclusivity concept governing
Scope Rules which are general in nature, as above set forth."
Likewise, here we are dealing with a general scope rule.
Claim (2)will be denied.
Award Number 21904 Docket Number MW-21749
Page 3
FINDiNGS :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 ar respectively Carrier and Employes within the meaning of the Railway Labo7 Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over thi dispute involved herein; and
The Agreement was violated in accordance with Opiniono
A W A R D
Claim (1)is sustenedo
Claim (2) is denied.
Claim ( 3) is sustained for eig..1.1.t ( 8) hours.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: t(.tv.
Executive Secretary
Dated at Chicago, Illinois, this 15th day of February 1978.