"Claim of the System Committee of the Organization (GL-11217) that:

1. Carrier violated the BN/TCU Working Agreement at Alliance, Nebraska, on dates listed below when material delivery work previously assigned to clerical employes was removed and performed by strangers.

2. Carrier shall now be required to pay the senior available qualified employe, on dates listed below, the amount indicated for delivery from Alliance Material Department to stated location:

(1) One (1) day's pay for May 15, 1991, account

material delivered from BN Material Department

at Alliance, Nebraska, to Guernsey, Wyoming, by

Nebraska Trucking Company.

(2) Two (2) days' pay for May 21, 1991, account

material delivered from BN Material Department

at Alliance, Nebraska, to Denver, Colorado, by

Nebraska Trucking Company.

(3) Two (2) days' pay for May 23, 1991, account

material delivered from BN Material Department

at Alliance, Nebraska, to Denver, Colorado, by

Nebraska Trucking Company.

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

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.

Parties to said dispute were given due notice of hearing thereon.

Senior qualified Truck Drivers covered by the Agreement at Alliance. Nebraska. allege here that the Carrier's use of certain outside Trucking Operators to move material between Alliance and various locations on the above dates constituted Scope Rule violations. The initial claims, filed in June and July 1991, were denied by Carrier on grounds that TCU-represented employees have never enjoyed exclusive rights to haul materials within the area in dispute. but that traditionally is has handled material distribution at Alliance on the most economical basis possible.

Carrier established Highway Vehicle Operator (HVO) positions at its Material Department at Alliance in 1976 to haul inventory between that site and various outlying points in the region. Thereafter, both before December 1, 1980 when the current agreement became effective and over the ensuing years, there were intermittent increases and decreases in the number of Drivers providing such services. as well as various changes in the manner in which such trucking operations were accomplished.

Beginning in the early 1980's, the Carrier developed what came to be known as "Roadrunner Service." part of a massive service overhaul program designed to eliminate stock at field locations and consolidate material stores functions at large, wellequipped Dependence on rail service was reduced accordingly. Insofar as this claim is concerned.

Roadrunner Service was the work of picking up and delivering material within a triangular area bounded by a line running southeasterly from Billings, Montana, to Lincoln, Nebraska; southwesterly from there to Raton, New Mexico; and then northnorthwesterly back t Department Stores at sites such as Alliance, duplicate material inventories at field locations were eliminated. From its inception, Roadrunner Service appears to have been accomplished principally by covered Drivers, although it is apparent from the record that outside truckers were used as well.

By late 1990, the Carrier had a fleet of eight Roadrunner trucks operating out of Alliance. In April 1991, shortly before these claims were filed, there were eight regularly assigned employees and one relief HVO employee dedicated to Roadrunner Service there. In May 1991, the Organization asserts those Drivers were advised by their Assistant Material Manager that the railroad was "taking away 2 trucks and [wasi going to start shipping as much as possible on commercial trucks because. . . Roadrunner budget was over and commercial budget was way under." Two HVO positions were eliminated that month, and claims were filed thereafter for each incident in which BN contracted with an outside trucking company to haul material in the Roadrunner area throughout May, June and July. On April 5, 1994, the Organization sought a joint check of relevant Carrier records to determine the volume of disputed work being accomplished by covered and non-covered personnel at Alliance. On May 10. 1994. Carrier rejected that request.

The Organization contends that Carrier's abolishment of HVO positions and the assignment of work reserved for covered employees to non-employees violates Rule I of the Agreement and is in conflict with numerous Awards holding that the Scope Rule of the Agreement bars unilateral removal of work. That Rule reads as follows:

"Rule 1. SCOPE

These rules shall govern the hours of service and working conditions of employes engaged in the work of the craft or class or clerical. office. station, tower and telegraph service and storehouse employes as such craft or class is or may be defined by the National Mediation Board.

A. Work now covered by the scope of this Agreement shall not be removed except by agreement between the parties."

Because Rule 1 is a "position and work" Scope Rule, the Organization contends it has no obligation to prove that its members exclusively performed the pick up and delivery work at issue here. Rather, pursuant to numerous Awards construing the Rule, the Claimants can lay valid claim to that proportion of trucking services performed by them prior to the Carrier's abolishment of two Truck Driver positions in May 1991. It asserts that the Carrier's use of outside contractors to perform an increasing proportion of such work after that date was a transfer of work from HVO Operators to non-employees in violation of the Agreement.

As a procedural matter, the Organization further maintains that by refusing to participate in a joint record review, Carrier demonstrated a failure to exert every reasonable effort to resolve this dispute as mandated by the Act, and that adverse inferences are warranted as a result.

Carrier does not dispute that the application and interpretation of the Scope Rule over a 15 year period establishes it as a "position and work" Rule not requiring a system-wide exclusivity test. It maintains, however, that a practice of sharing the disputed work existed at Alliance; that there has been no showing of any diminution in the amount of over-the-road trucking by covered employees as a result of additional hauling work performed by others: and that, in any event, case law establishes that such work can be reduced or even eliminated so long as the quantum performed by contractors does not increase.

Carrier also raises a preliminary procedural issue. From its perspective. the issue before this Board was not presented within 60 days of the "date of the occurrence on which the claim . . . is based" as required by Rule 60 A of the Agreement. Carrier argues that its decision to park two Roadrunner trucks was made in January 1991, and this claim therefore should have been filed within 60 days of that event, anti not within 60 days from the date the two Roadrunner positions were abolished in stay 1991.

Both the Carrier's contentions regarding timeliness and the Organization's motion for adverse inferences can be and are dismissed without extended discussion. First. in the judgment of this Board, that the Carrier openly pulled in two trucks while outside contractors continued to haul material to and from Alliance is not the gravamen of the Organization's claim. Carrier's right to match the number of trucks to the needs of its service is not circumscribed by the Agreement nor is it challenged here. What is contested is the reduction of covered work with a corresponding increase in the use of

commercial truckers for hauling within the area serviced by Roadrunners. That fact defangs the Carrier's argument that failure to file claims when trucks were parked was a fatal delay. The Board concludes these claims are not based upon the parking of trucks but upon loss of covered work, as prominently flagged by the abolishment of two HVO positions.. The claims were thus timely filed.

Secondly, this Board rejects the Organization's contention that adverse inferences should be drawn from Carrier's refusal to participate in a joint document review. The Organization did not seek such a review until almost three years after these claims were initiated. If potentially relevant documents were destroyed in the interim, it appears from this record to have been pursuant to the Carrier's normal document destruction program, and not out of any intent to "avoid justice." While it is undeniable, as the Organization argues. that participation in such a review would have been consistent with the goals of the Act, a joint review was not contractually required, and its absence has little probative value in either direction. Nothing in this record supports the view that Carrier's failure to assist those asserting claims against it was a product of bad faith or that it justifies adverse inferences.

The merits of this conflict unavoidably plunge this Board at the outset into consideration of how the parties' Scope Rule has been interpreted in the past. The cases have produced a broad range of decisions. From them. we attempt below to summarize the principal relevant standards on the issue before us.

As initially seen and understood. the parties' Scope Rule reserved in Section A to those positions listed in Section C "that amount and type of work which employes in those positions actually were performing as of December 1, 1980. I n other words . . . the language of Rule 1. Sections A and C . . . constitute a `freeze-frame' with respect to work reservation in positions listed in the Agreement." Appendix K Board Award No. 88. Thus. work then performed by covered employees was work protected by the Scope Rule. Subsequent Awards made it clear that new or additional work added after December 1,1980 was also covered by the Rule. Appendix K Board Award No. 99, for instance. purports to identify "an adhesive quality [by[ which work once assigned to employes clearly covered thereby becomes vested in those employes and may not thereafter be removed unilaterally from them and given to other employes. Thus . . . Paragraph C is not merely backward looking to December 1, 1981 [sic[ but can. under the described circumstances, bring within the work reservation effect of Rule 1 `new

work' or work not actually being performed by Agreement-covered employes as of December 1980." See also, Appendix K Board Award No. 162.

The standards for determining when work is brought within the Scope Rule were further elaborated upon in Public Law Board No. 3085, Award 1: "Paragraph C may bring such work within the reservation reach of Rule 1 under the following circumstances: 1) if the work is assigned to and regularly performed by employes in Sections I through 8 of Paragraph C, or 2) if the work at issue is work described and reserved by the specific language of Paragraph C, Section 5." Award No. 162 defines "regular performance:" "The regular performance of work means that employes identified in Rule IC must steadily and usually perform the work over a reasonable period of time."

Neither party disputes that Roadrunner work was "assigned to and regularly performed by employees in Sections l through 8 of Paragraph C" over a reasonable period of time. The parties agree that the new work assigned after 1980 was the same work in kind as that performed by HVOs prior to that date. Nor is there any question but that the work of HVO positions falls within Paragraph C. "`Truckers' . . . under any reasonable definition, includes Highway Vehicle Operators." .ward No. 162. Accordingly, the positions and the work in dispute meet the standards set forth in prior decisions of the Appendix K Board. HVO work cannot be unilaterally removed from covered employees. The parties have entered into no agreement to remove this work for assignment to non-employees.

Where. as here, covered employees share covered work with outsiders, the question of how much of such work is scope-protected can arise and complicate an already confounding exegetical exercise. That is the crux of this dispute.

The parties agree that Special Board of Adjustment Appendix K Award 116 is authoritative on the subject. The test for determining the protected "quantum" of work when violations of the Scope Rule such as the Alliance claims are considered requires Claimants to prove: 1) the amount and type of the disputed work performed by agreement-covered employees at the location as of December 1. (980; 2) the amount and type of such work which covered employees performed after the alleged violation; 3) the amount and type of such work performed by strangers to the Agreement as of December 1, 1980; and 4) the amount and type of such work performed by strangers after the alleged violation. In context with subsequent Awards extending scope

protection to work acquired after 1980, we read the above Award as extending the 1980 references to such later dates.

The Organization says it is entitled to no less work than it had on the day these claims were filed. It has shown a reduction in overall covered positions; a reduction in straight time hours; a reduction in average miles driven; a reduction in overtime hours. The Carrier's reply is that there is nothing in the record to define the "quantum" of work being performed by Claimants at the time these claims were presented. Carrier says this is not a question of lost overtime. And it means nothing, Carrier contends, to say that trucks were parked. It surely does not mechanically establish that covered work was taken away. Carrier must have the right to set the size of its fleet. The argument made by the Organization here is that they suffered reductions in hours and positions, and from that we are asked to conclude that they are not getting their quantum. But Carrier urges that Claimants need to demonstrate on this record what their proportion of work was relative to outsiders in 1991 when they filed their claims. And there is nothing here upon which to base a quantum determination. Indeed, about four months before this claim was filed, the Organization had only six drivers. That number has varied up and down. Carrier says its data demonstrates that the amount of work performed by Claimants actually increased after these claims were filed. The Organization has not met any of the four prongs of Award No. 116.

There are two problems with Carrier's position. First. claiming that baseline figures for 1991 were not available to it. the Organization relies on the annual reports from the Material Department at Alliance to Carrier's Vice President Material :Management to demonstrate that "Loads In" and "Loads Out" work by covered employees for the three year period following the abolishment of covered positions did in fact decline steadily. That data. not contested by Carrier, showed the following:

"1992 - 662 Loads Out

655 Loads In

1993 - 585 Loads Out

526 Loads In

1994 - 517 Loads Out

462 Loads In"

The second difficulty with Carrier's argument is that even the numbers it depends on demonstrate that the proportion of covered work done by the Organization's members went down after two HVO positions were eliminated. First, in responding to the above data, Carrier supplied the missing 1991 figures, stressing, correctly, that its recaps showed an actual increase in overall activity between 1991 and 1992. The 1991 data was as follows:

"Roadrunners Commercial