This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Organization claims that the Carrier violated the Agreement when it assigned or otherwise permitted outside forces (Austin Bridge) to perform bridge and building subdepartment work on the bridges at Loggy Bayou, L&A Mile Post 589.6, beginning on October 21, 1991 and continuing thereafter. Employees of the outside contractor, who held no seniority under the Agreement, drove pilings, erected headwalls and performed all work related to the construction of concrete bridges. The Organization claims that work of this character had historically, traditionally and customarily been assigned to and performed by the Carrier's B&B employees. The Organization also asserts that the Carrier did not notify the General Chairman, in writing, of its plans to contract out the work as required by Article IV of the May 17, 1968 National Agreement and the interpretations and amendments thereto in the December 11, 1981 Letter of Agreement.
The Organization alleges violations of Rule 1, Scope; Rule 2, Seniority; Rule 22, Overtime; Addendum No. 9, Article VI-Contracting Out, of the May 17, 1968 National Agreement; and the good faith requirements of the December 11, 1981 HopkinsBerge Letter regarding the contracting out of work.
The Carrier denies that it violated the Agreement. It asserts that it did give notice of its intention to contract the work, although such notice was not required for the type of work claimed in this case. Tile Carrier further argues that the Scope Rule is merely "general in nature" and the burden of proof is reserved to the Organization to show persuasive evidence of traditional and historical performance of the work claimed. Neither of the Claimants in this case nor any other Maintenance of Way employees have exclusively performed the work claimed. The Organization therefore failed to meet its burden of proof. Finally, the Carrier argues that even if the claim should be sustained on the merits, most of the Claimants were unavailable during the period the work was performed and no monetary award should be made because the Claimants did not suffer any pecuniary loss. Form 1 Award No. 31829
In reviewing the instant dispute, we confined our consideration, as we must, to those matters raised by the parties on the property. Evidence in the record establishes that notice was given by letter dated July 1, 1991 (from A.H. Mentz, Vice President, Human Resources, to L.W. Borden, General Chairman) of the Carrier's "intention to contract with Austin Bridge Company to reconstruct L&A Bridge 589.6 over Loggy Bayou near Nimock, Louisiana." The letter specifically described the project:
The letter further stated that the Carrier's B&B forces did not have the necessary expertise, experienced supervisory personnel or equipment to accomplish the project. The Carrier asserted that its forces had not performed this type of work in the past. Finally, the Carrier asserted that the work was not within the Scope Rule of the current Agreement, and that the Carrier had not furloughed Maintenance of Way employees.
The parties are in dispute over whether the work was within the Scope of the Agreement and reserved to the Organization. Numerous Awards of the Third Division have established that the Organization has the burden of proof on this issue. In Third Division Award 29331, involving the same parties in the instant dispute, the Board stated:
In the instant case, the Organization's initial claim letter recites that the work has "traditionally and historically" been performed by its members. However, the record does not contain any evidence that any such work was actually performed. In denying the claim, the Carrier stated: Form 1 Award No. 31829
In its appeal letter, the Organization stated that, "B&B have worked all up and down this railroad installing bridges...," but no specific evidence of such work was provided.
In Third Division Award 29332, involving the same parties in the instant dispute, the Board considered a similar claim and found evidence of past performance that established that repair work on concrete bridge substructures as well as a wide variety of unrelated work had been performed by the employees in the past. The evidence also contained references to performance of the same work by contractors. However, the Board concluded:
The Organization has not identified clear Agreement language reserving the work to BMWE represented employees and it has not proved with specific evidence that said work was traditionally performed by these forces. Because the Organization has not established a prima facie case of Scope coverage for reservation of work purposes, the claim must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.