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.
As Third Party in interest, the Brotherhood of Maintenance of Way Employes was advised of the pendency of this dispute and chose to file a Submission with the Board.
At the time this case arose, Claimant was the regular incumbent of Store Attendant Position 6BMCSA-02, at Carrier's Bear, Delaware, facility. His tour of duty was from 2:30 P.M. to 10:30 P.M., Monday through Friday, with rest days of Saturday and Sunday. By letter of November 12, 1993, the Organization filed a claim in which it alleged that Carrier had violated Rule I (Scope) and other Rules when it permitted Maintenance of Way Repairman Scott Cerra to perform certain clerical functions on a daily basis beginning November 1, 1993. As remedy, the Organization requested that Claimant be allowed seven and one-half hours per day at the time and one-half rate on a continuing basis from the date cited. That claim was denied on December 22, 1993, and was subsequently progressed in the usual manner up to and including the highest Carrier officer empowered to handle such matters.
It is the position of the Organization that the Carrier has violated several Rules of the Agreement, especially Rule 1 - Scope. That Rule reads in pertinent part as follows:
The Organization maintains that the "sword and shield" theory enunciated by previous Boards applies in this case. Employees cannot reach for work now done by those outside the Agreement, but work under the Agreement cannot be taken from Scope-covered employees. The Organization also points out that there is a long line of Awards disputing Carrier's notion that a "general" Scope Rule is bare of restraint insofar as Carrier assignment of work is concerned. Carrier may not unilaterally assign the work to whomever it chooses (Third Division Awards 3744, 3746, 11072 and Public Law Board No. 2035, Award 1).
It is the position of the Carrier that the Organization has failed to demonstrate how Rule 1 of the Agreement has been violated, nor has it presented any evidence that a violation occurred. Rather, the Carrier maintains that the Organization has made nothing more than mere assertions and has utterly failed in its responsibility to develop its burden of proof. Moreover, the Maintenance of Way employee concerned is simply the liaison employee in the Material Management Department at the Bear, Delaware, facility. He reviewed M/W purchase requests and interacted with various vendors. The Carrier asserts that the review and ordering of material is not the exclusive work of TCU employees, nor is there anything on the record that would demonstrate that the Form 1 Award No. 32170
ordering and review of material requisitions belongs historically, traditionally and exclusively on a system-wide basis to TCU-represented employees. The Carrier insists that employees of other crafts and management employees have traditionally handled material requisitions, quotation bid forms, and ordered material, and no claims were filed.
This Board is in agreement with the Organization that, even under a Scope Rule that is general in nature, the Carrier's freedom to assign work traditionally performed by the covered craft to other employees is not untrammeled. In this case, however, the Organization has failed to sustain its burden of persuasion. While it clearly disagrees with the Carrier's characterization of the ubiquitousness of the work at issue, the Organization has not presented any evidence on this record which would support its assertion that the work in question has been historically performed by only those employees covered by the TCU Agreement Accordingly, the Board has no basis upon which to sustain the instant claim.