Agreement was executed with representatives of the BRAC Organization on May 22, 1981 disposing of part of the issues involved in the organization's attached, and you will note it is effective June 1, 1981.

We suggest that the following items be noted carefully:

RULE 1 - SCOPE

This rule is amended with a revised paragraph (b) to provide that positions or work now under coverage of the Scope Rule will not be removed therefrom except by agreement. This does not mean that we may not abolish unneeded positions; however, any work remaining from an abolished position must be reassigned to another contract position.

The amendment should be reviewed in light of the Memorandum of Agreement dated May 22, 1981 attached to the main agreement. This agreement interprets the new amendment and provides that work will not be removed from contract positions now performing such work. Similarly, it provides that the new amendment will not be expanded to cover work now performed by other crafts or outside parties. For example, we have other employees transporting crews, transporting mail, performing janitorial work, using IBM equipment, etc. This may be continued as well

At the threshold, Carrier asserts procedural deficiencies in the claim and moves for dismissal without determination of the merits. Specifically, Carrier urges that the Claimant is not properly identified and the damages alleged are excessive. Review of the record shows that these issues were never raised on the property and may not now be considered de novo at the Board level.

Turning to the merits of the dispute, both Parties recognize that proper determination of this case is governed by the express language of the may 22, 1981 Memorandum of Agreement. That Agreement dictates whether we apply the old "general" Scope Rule of the January 1, 1973 Agreement or the new "positions and work" Scope Rule of the June 1, 1981 Agreement. If, as carrier insists, Yardmasters, Conductors and non-contract employees, as well as Clerks, were "presently performing" the work of signing bills of lading as of June 1, 1981 (the effective date of the new "positions and work" Scope Rule), then this dispute is governed by the old "general" Scope Rule. See Public Law Board No. 2807, Award 55 and Third Division Award 21437.

On the other hand, if the organization is correct and no Yardmaster ever performed the work of signing bills of lading under any circumstances until late 1988, then the case is governed by the new "positions and work" Scope Rule. Under such Rules, the traditional burden of showing "exclusivity" and "system wide performance" are no longer applicable. See Third Division Award 21933; Public Law Board No. 2668, Award 120.

The principles governing proper application of the May 22, 1981 Memorandum of Agreement are not matters of first impression, but, rather, were decided authoritatively by Public Law Board No.

"The Board agrees with Carrier's position that the Organization has the burden of proof in the present case. We agree with Third Division Award 19833, holding that 'This Board is fully aware of the very serious consequences of a Scope Clause ...a Carrier must not be found guilty of... a violation without more than a conclusionary allegation... The burden of proof rests with the organization. That burden exists for the protection of both parties as well as the Board and it is incumbent upon the Claimant to provide sufficient evidence to sunoort the version of facts upon which it relies. (Underscoring added.)

The crux of this dispute concerns the proper application of the Scope Rule. Were we to follow the Rule (1981) cited by the organization, we would conclude that the Claim has merit. However, a review of the Agreement indicates that the controlling provision is under the 1973 Agreement. Addendum 1-B, cited earlier indicates that 'the dispute will be processed under the provisions of the... Agreement effective January 1, 1973, with the understanding that the Scope Rule, as revised and effective on June 1, 1981, will not be applicable...' (Underscoring added.)

The provision, cited by the Carrier, indicates that 'Positions within the scope of this agreement belong to employees herein covered ....' The 1973 Rule does not specify any duties that are reserved for any particular group of employees. Therefore, unless the Organization establishes that the Carrier had a system-wide practice of exclusively assigning the duties in question to certain groups, it cannot meet its requisite burden. The organization must show that the Claimant's employee group was exclusively entitled to perform the duties created by the abolishment. The organization has failed to meet that burden."

The May 22, 1981 Memorandum of Agreement appears to be enigmatic, in that it plainly diminishes the full impact of the "positions and work" Scope Rule which the Parties adopted effective June 1, 1981. Yet, these are both solemn contractual undertakings, drafted and executed by experienced negotiators. An interpretation is required, therefore, which reasonably reconciles these respective contractual provisions, without negating or rendering meaningless the commitments contained in each. Such an interpretation is set forth in Public Law Board No. 2807, Award 55 which authoritatively holds that the May 22, 1981 Memorandum of Agreement somewhat blunted the "freeze-frame" effect of the new "positions and work" Scope Rule with respect to work "presently being performed by outside parties or employees of other crafts" as of June 1, 1981. In short, the May 22, 1981 Memorandum of Agreement "grandfathers" such "presently performed" work by requiring that disputes over such work be governed by the old "general" Scope Rule of the January 1, 1973 Agreement.

For reasons not apparent on its face, Third Division Award 28269, rendered February 28, 1990, rejected the precedential value of the holding in Public Law Board No. 2807, Award 55 with the following dismissive statement:

"Carrier's reliance on Awards 10 and 55 of Public Law Board 2807 is misplaced; those Awards dealt with circumstances prior to the May 22, 1981 Agreement."

We do not find the approach followed in Third Division Award 28269 appropriate in the present case. A decent respect for stability in labor relations and predictability in contract interpretation and application compels us to treat Public Law Board No. 2807, Award 55 as authoritative precedent.

The only point about which this Board needs to elaborate upon the holding of Public Law Board No. 2807, Award 55 is with respect to the requisite burdens of proof in the application of the May 22, 1981 Memorandum of Agreement. We concur with the holding of Public Law Board No. 2807, Award 55 that the initial burden of going forward to show that the work in dispute is otherwise covered by the "positions and work" Scope Rule lies with the organization. Once the Organization makes out a prima facie showing that the disputed work is so covered, however, we hold that the burden of proof shifts to Carrier to show that the work comes under the exception stated in the May 22, 1981 Memorandum of Agreement. After all, Carrier is the Party invoking the "escape clause" of that Agreement and seeking to avoid application of the new Scope Rule in these cases. Accordingly, we hold Carrier to the burden of

proving the condition for application of the Memorandum of Agreement, specifically, that the specific work in dispute was "presently being performed by outside parties or employees of other crafts" as of June 1, 1981.

In denying the claims on the property on November 11, 1989, Carrier provided the Organization with a written statement dated October 27, 1989, by a General Yardmaster, which reads as follows:

"I have worked at Decatur, Oakworth Yard for 24 years and bills of lading when brought to office by customers when clerks were not in office due to out checking yard or making wagon moves the yardmaster has on these occasions signed bill of ladings so customers would not be detained acct. clerk being out of office. This practice was going on when I first came to Decatur."

Seven months later, by letter of May 21, 1990, the Organization provided Carrier with three statements dated November 25-27, 1989, wherein several Clerks and former Clerks assert that signing bills of lading was a routine duty of their positions at Decatur, Alabama, which they never knew to be performed by Yardmasters.

The net effect of this countervailing record evidence establishes that, as of June 1, 1981, signing bills of lading was work regularly and routinely performed by employees in the Agreement-covered positions of Clerk; except for isolated and sporadic performance of this work by the Yardmaster when a customer came to the office with a bill of lading to be signed and the onduty Clerk was away from the office