The threshold issue before the Board is whether the Organization has shown, by a preponderance of record evidence, that the particular snow removal work performed by a subcontractor on claim dates accrues to maintenance of way employees. This proof could have been established either by reference to specific Agreement language, or by a persuasive showing that the maintenance of way forces have specifically and historically performed said work.

There is no express reservation of the disputed work in the Scope Rule, therefore the Organization must show such reservation by evidence of custom, practice and tradition. However the record does not even show exactly what work was performed by the outside forces. The Organization asserts that work of clearing snow from around switches always has been performed by maintenance of way employees. Assuming, without necessarily deciding that this is a fact, it does not add anything to our understanding of this case. Carrier responds that the work performed on claim dates was of a type regularly performed by outside parties. The Board thus has insufficient evidence to make an informed decision and the evidentiary standoff works against the organization, which has the burden of proof on each material element of its claim. The organization was unable to shoulder that burden, therefore, we cannot find that the Carrier violated the Scope Rule provision of the Agreement. Carrier's defense that this was "emergency" work was not refuted, thereby obviating that part of the claim which alleged violation of the meet and notice requirement.

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