The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
At the time this claim arose, Claimant was employed as a Chauffeur/Tractor Operator at Carrier's Wilmington, Delaware, Mechanical Facility. On November 5, 1993, a truck driver from an outside trucking firm was used to transport Carrier material from Wilmington to Sunnyside Yard, New York, in a Carrier vehicle. In a letter dated December 20, 1993, the TCU District Cbairman filed a claim for eight hours pay at the time and one half rate on behalf of Claimant. That claim was denied on Februarv 8, 1994, and was subsequently progressed in the usual manner.
The Organization alleges that Rule 1 - Scope of the Agreement has been violated; in particular, the portion which reads as follows:
The Organization maintains that the Scope Rule establishes a contractual right to the work in question to Claimant. Since Claimant regularly drove from point to point, he had clearly performed the work in the normal course of his duties. Moreover, the Organization contends that Rule 1(e) contemplates that supervisors may occasionally perform clerical work, but that non-contract employees are not included in that provision. The Organization further maintains that the use of a non-clerical employee to transport materials was not, as Carrier asserts, a long-standing arrangement. The Scope Rule herein is not bare of restraint, insofar as Carrier's assignment of work is concerned, and Carrier is not free to do what it did in the present case (Third Division .awards 3746, 3746, and 11072).
The Carrier asserts that the parties' Scope Rule was not violated. It is a general Scope Rule, and does not reserve the work in question to members of the TCU craft. In addition, the Carrier urges that there is nothing in the record to demonstrate that truck driver work belongs to the TCU Organization. The Carrier notes that it was pointed out on the property, without refutation, that employees of other crafts and also outside contractors at all Carrier facilities have traditionally and historically performed the work of pick-up and delivery of Carrier materials between its various facilities and no claims were filed.
A careful review of the record indicates that the Organization has failed to carry the burden of persuasion in this case. The Scope Rule in the Parties' Agreement is general in nature. Nowhere in that rule is the work at issue reserved to members of the TCU. The Organization has not presented evidence, beyond assertions, that Carrier violated the Scope Rule when it assigned an outside contracted truck driver to convey the materials between Wilmington, Delaware, and Sunnyside Yard, New York. It bas been held on this and other Boards that in order to prove a Scope Rule violation under a general Scope Rule, the Organization must show that the work at issue was reserved to TCU members by past practice, tradition, or custom on a system-wide basis (Third Division Awards 29598; 31096; and Public Law Board No. 2791, Award 1). The Organization in this case has failed to do so. Under the circumstances, Claimant's availability is moot (Third Division Awards 21268 and 19833).
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.