NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number SG-25633
Stanley L. Aiges, Referee
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of
Railroad Signalmen on the Missouri Pacific Railroad
Company that:
(a) Carrier violated the May 1, 1964 Signalmen's Agreement, as
amended, particularly the Scope Rule, when on January 4, 5 and 6, 1983, it
permitted a person not covered by said Agreement--an employee of (Vaught's
Construction Co.) to perform signal work at Mile Post 421, Self, Arkansas,
consisting of digging foundation holes and trenching for underground track
wires in connection with installation of a Hot Box Detector.
(b) Carrier should now be required to compensate D. M. Swindall
time equal to what was worked by the employee of Vaught's Construction
Company -- eight (8) hours each date January 4, and 5, and four (4) hours
January 6, 1983, total of twenty (20) hours at claimants overtime rate, as
consequence of the violation and/or loss of work opportunity. (General
Chairman file: 83-5-UL. Carrier file: B-225-946)
OPINION OF BOARD: This claim alleges a violation of the Scope Rule of the
Agreement occurred on January 3, 4 and 5, 1983, when
Carrier permitted an employee of Vaught's Construction Company to dig
foundation holes in connection with the installation of a hot box detector at
Mile Post 421, Self, Arkansas. Claimant was a member of a signal gang
assigned the task of installing the hot box detector. The ground at the
location was composed of ledgestone. Heavy machinery was required to break
the stone in order to permit the installation to proceed. Vaught Construction
Company, which was on the site performing other work, had the heavy equipment
needed to prepare the ground. It was employed to dig the hole for the hot
box detector foundation and a trench for power cables. The thrust of the
dispute here is that Claimant was exclusively entitled to that work under the
Scope Rule of the Agreement. (It is undisputed that Claimant was under pay
at all times involved.)
Award Number 25542 Page 2
Docket Number SG-25633
This Division has frequently held that to merit a sustaining award
in a Scope Rule dispute, the Organization bears the burden of establishing
its entitlement to the disputed work on the basis of specific provisions of
the Agreement, or on the basis of exclusive system-wide practice. See Third
Division Award Nos. 25396; 25177; 25136; 24853; 23211; and 21898. An
analysis of the Scope Rule involved here reveals that the task of digging of
holes is not specifically enumerated. In fact, various Awards of this
Division have considered that specific question. A11 have found that such
work is not specifically or necessarily covered by such "general" Signalman
Scope Rule phrases as "installation" or "maintenance." Third Division Award
Nos. 17960; 19450; 20336; 20465; 20709. Thus, the claim cannot be sustained
on the basis of entitlement due to clear contract language.
Nor is there sufficient evidence to support the Organization's
position on the basis of past practice. Signalmen may well have dug holes at
sites such as the one in question. But they have not done so exclusively.
The record reflects that such work has often been contracted out in the past
where it is impractical to perform digging by hand with shovels.
The Organization, in short, has failed to meet its burden of proof
of exclusive jurisdiction over the disputed work. The claim, accordingly,
must be denied.
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 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
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy ver - Executive Secretary
Dated at Chicago, Illinois, this 26th day of July 1985.