Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27187
 THIRD DIVISION Docket No. TD-26636
 88-3-85-3-382
 The Third Division consisted of the regular members and in
 addition Referee George S. Roukis when award was rendered.

 (American Train Dispatchers Association PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the American Train Dispatchers Association that:

 (a) The Southern Pacific Transportation Company (Western Lines) ('Carrier') violated its Train Dispatchers' schedule working conditions Agreement, when, effective at or about 12:O1AM, on January 17, 1983, it allowed the respective duties and responsibilities referred to in


of said Agreement, as pertains to that portion of the Tillamook Branch of the Oregon Division between Batterson and Tillamook and which duties were previously performed by Train by persons not covered by said Agreement.





(c) In the event no qualified extra Train Dispatchers are available for any of the respective shifts specified in paragraphs (b) (1) above, the claim is then made on behalf of the senior qualified regularly assigned Train Dispatcher available for such shift or shifts, at the appropriate rate.
 Form 1 Award No. 27187
 Page 2 Docket No. TD-26636
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 (d) In the event no qualified regularly assigned Train Dispatcher is available under the conditions set forth in paragraph (c) above, the claim is made on behalf of the senior qualified Train Dispatcher who is off duty during such shift or shifts.

 (e) Eligible individual Claimants entitled to the compensation claimed in paragraphs (b), (c) and/or (d) above include:




























FINDINGS:
The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employees involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.
 Form 1 Award No. 27187
 Page 3 Docket No. TD-26636
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 This Division of the Adjustment Board has jurisdiction over the
 dispute involved herein.



Prior to January 15, 1983, Carrier operated two runs on the portion of the branch line between Hillsboro and Tillamook, Oregon. One run with Carrier's engine and train crews was assigned to work from Tillamook to Batterson and back to Tillamook. The other run with Carrier engine and train crews was assigned to work from Hillsboro to Batterson and back to Hillsboro. Batterson was the interchange point for cars handled by the two runs. Both train and engine crews operated under train orders issued by the train dispatcher's office at Eugene consummated an Agreement with the Port of Tillamook Bay Railroad (PTBR) on January 12, 1983, which in effect discontinued operations west of Batterson, Oregon and the handling of all rail traffic in that area was contracted out to the Tillamook Bay Railroad. As an additional supportive step, Carrier also negotiated an Agreement with its operating crafts that the Tillamook Bay Railroad could now perform locomotive (leased from Southern Pacific Railroad) to make two and sometimes three round trips per week from Tillamook to Batterson and said trips are made without the necessity of train orders.

 In response to this action, the Organization charged that Carrier blatantly violated Article 1 (Scope Rule), Sections (b) and (c) respectively, since prior to the effective implementation of the January 12, 1983 contracting Agreement, the asser of the train dispatcher classes. Sections (b) and (c) are referenced as follows:


Form 1 Award No. 27187
 Page 4 Docket No. TD-26636
 88-3-85-3-382

 The Organization maintained that since the Scope Rule herein was specific and not general in nature, it was unnecessary to proof exclusivity by virtue of custom, history and tradition. The Organization maintained that Carrier was barred from contracting out explicitly protected work and cited numerous Third Division Awards and Public Law Decisions to support its position. It noted that the t property of Carrier and Carrier continued its responsibility to underwrite the maintenance of the trackage. It further observed that Carrier acknowledged the Agreement with the operating crafts, as an antecedent step before the Port of Tillamook Bay Railroad operated the subject trackage and pointed out that Carrier admitted that train movements were under the direction of train dispatchers before the implementation of the January 12, 1983, contracting Agreement.

 In rebuttal, Carrier argued that the claim was procedurally defective, since it failed to articu demonstrable occurrences. It cited several Third Division Awards to affirm its procedural objections.

 On substantive grounds, it asserted that it was not estopped from discontinuing its operation between Batterson and Tillamook and contracting out the handling and movement of rail traffic on that section. On this point, it noted that the organization has not produced evidence indicating that said action was prohibited or restricted nor evidence showing that train orders were, in fact, being issued. It noted that the Port of Tillamook Bay Railroad using one leased Southern Pacific locomotive, generally made two and sometimes three, daylight round trips per week from Tillamook to Batterson, without the need for train orders and without the need to contend with conflicting moves. Accordingly, since the involved train crew did not perform the work set forth in the Organization's Scope Rule, but instead operated on its own initiative, Carrier argued that a rule violation, by definition, could not have occurred. It also noted that no dispatcher's position was abolished as a result of the January 12, 1983 contracting Agreement and no dispatcher showed a loss of earnings from the aforesaid transaction.

 In considering this case, we concur with Carrier's position. We do so for several reasons. Firstly, Carrier was not estopped from discontinuing operations west of Batterson, Oregon. It properly entered into an Agreement with its operating employees to permit train crews of the Port of Tillamook Bay Railroad to run trains on this portion of the branch line between Hillsboro and Tillamook. Secondly, there is no evidence that work covered by Article 1, Sections (b) and (c) was performed by specifically identifiable employees of the Port of Tillamook Bay Railroad or that train orders were specifically issued by the crew(s) operating the two or three round trip runs per week between Tillamook and Batterson. Thirdly, notwithstanding Carrier's consistent statement that the train crew(s) operated without train orders and in an operational environment not requiring such issuance, the Organization never refuted these statements or demonstrably established that train orders were issued. The on situs appeals correspondence, which is germane to a resolution of this dispute does not contain specific identifiable evidence
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 that train orders were issued or that other protected work was performed by employees of the Port of Tillamook Bay Railroad. Consequently, and in view of this appeals record we are constrained to find for Carrier and the instant claim must accordingly be denied. We hasten to point out that unlike the several adjudicated cases upholding scope rule violation between the same parties herein under Public Law Board No. 629, the fact specifics of those cases are palpably distinguishable from the facts herein. In the case at bar, the record is bereft of clear evidence that specific protected work was specifically performed by specific unauthorized employees of the Port of Tillamook Bay Railroad.




                          By Order of Third Division


Attest:
        ancy J. D - Executive Secretary


Dated at Chicago, Illinois, this 23rd day of June 1988.

LABOR MEMBER'S DISSENT

to

Award 27187 - Docket TD-26636

Referee Roukis


Responsibility for the movement of trains is exclusively the work of the train dispatcher classes, and may not be contracted out, which is essentially what the Carrier did in this case.

      Several Awards have held that this work is reserved to train dispatch-


ers on this property:
 Third Division Award Referee
 6885 Jay S. Parker
 7575 Dwyer W. Shugrue
 7576 Dwyer W. Shugrue
 7628 Livingston Smith
 9846 Frank Elkouri
 16038 George S. Ives

            P.L.B. 629


              1 Paul D. Hanlon

              2 Paul D. Hanlon -

              3 Paul D. Hanlon

              4 Paul D. Hanlon


Likewise, the same or similar Scope Rule has been held to reserve this work to train dispatchers on other properties:

 Third Division Award Carrier Referee
 1015 LV Wiley W. Mills
 2070 DL&W Ernest M. Tipton
 5628 PRR Hubert Wyckoff
 5664 SLSF Hubert Wyckoff
 8840 SIRT Donald F. McMahon
 11432 PRR Martin I. Rose
 14219 SLSF Arthur Stark
 14911 SLSF Edward A. Lynch
 15460 S$A George S. Ives
 15468 Reading Edward A. Lynch
 15477 AGS Don Hamilton
 16556 N$W John J. McGovern
 17709 Soo Line Charles W. Ellis
 17764 CB$Q Don Gladden
 17827 CB$Q David Dolnick
 18459 SLSF David Dolnick
 18568 SLSF David Dolnick
 18589 SLSF David Dolnick
 19466 SLSF William M. Edgett
 20838 Soo Line Robert A. Franden
 Labor Member's Dissent to Award 27187, continued
Third Division Award Carrier Referee
 24183 C&NW Martin F. Scheinman
 25214 C$NW Martin F. Scheinman
 26073 AT$SF Marty E. Zusman
 26137 ConRail Marty E. Zusman
 26496 MP Herbert L. Marx, Jr.
 26593 StLSW Elliott H. Goldstein

 It is significant, we think, that this trackage on the Tillamook Branch remained the property of the Carrier:

      "Commencing on January 17, 1983, Carrier continued its responsibility in regards to maintenance at its expense of the entire length of branch track to Tillamook that Carrier continued to own." (Underscoring supplied)


The above quotation is taken from the Carrier's own Submission. Further, the Carrier admitted it negotiated an agreement with employees of the operating crafts to permit the on the subject trackage.

 The Carrier defended on the basis the Employees failed "to define the 'occurrence' on which the claim is based" and "At no time during handling on the property did Petitioner assert or submit any evidence or proof". That these defenses were found to have any substance by the Majority calls for this Dissent, for the record itself furnishes the rebuttal to these defenses:

 (1) The Carrier admitted that train movements were, prior to January 15, 1983, under direction o
(2) The Carrier admitted it contracted with PTBR to perform its work.

 The cause of action, therefore, is the removal of the work from exclusive performance in accorda by Carrier are regarded by this Dissenter as adequate to supply the Petitioner's burden of proof.
 A more flagrant violation of the Scope Rule cannot be comprehended. Indeed, an admitted violation occurred. This Dissent is required for this
 Labor Member's Dissent to Award 27187, continued
reason. The outcome of this dispute is indicative of the anti-labor, pro-business disposition of our society. This Dissent is triggered not so much by surprise, but more by resignation.

                        ~J


                          R. J. Irvin

                          Labor Member


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