This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The instant dispute is another in a long line of Scope Rule cases that allege the Carrier violates the Agreement when it uses non-clerical personnel to transport train and engine crew members within rail yards as well as between on-duty and off-duty points. The case before us arose under the former Seaboard Coast Line Agreement after a day-shift clerical position was abolished at Milan Yard. The claim cited some 13 examples when operating crew members were transported by strangers to the Agreement during day-shift hours between March 5 and 30, 2003.
The principles that govern the resolution of these disputes are intricate and thus a careful analysis of the evidence is required. Although prior Awards have found in favor of both parties, it must be remembered that each dispute is decided on its own record. Because the record in any given case may be more or less welldeveloped by the parties on the property, the results can vary considerably. Prior Awards, therefore, must be read very carefully before cloaking them with significant precedent value. If it is not readily apparent from the text of an Award that the record from which it emerged was fully developed, then the precedent value of the Award is questionable. An Award is not on point if it does not deal with all of the key issues bearing on the dispute.
The instant parties now have a "positions or work" Scope Rule that was adopted in their 1981 round of collective bargaining. In that same round of bargaining, however, they agreed that the new "positions or work" Rule would be limited on a location by location basis. Indeed, by this May 7, 1981 Agreement, the new Scope Rule could not even be referenced in the claim handling process if, as of May 16, 1981 at each affected location, any of the disputed work was presently being performed by outside parties or employees of other crafts. If such a shared work arrangement existed at a given location on that critical (late, then the former general Scope Rule of the parties' January 1, 1975 Agreement controlled at the individual location. That general Scope Rule (lid not explicitly reserve crew hauling to clerical employees. Moreover, the applicable line of precedent that applied to the general Scope Rule said that, in the absence of explicit language reserving work, the Form 1 Award No. 37770
Organization had to satisfy the burden of proof to show exclusive past performance at the individual location.
Award 4 of Public Law Board No. 6409 describes in detail the history of the transition from the general Scope Rule to the positions or work Scope Rule. It also carefully traces the solid line of authority that emerged from the Awards of veteran Referees. Accordingly, no attempt will be made here to restate the content of that Award. Suffice to say the line of authority established that each crew hauling controversy must be analyzed and decided upon the facts of the specific work practices at each individual location as of the critical date, which is May 16, 1981.
Thus, the threshold issue for our determination is i°hich Scope Rule applies to the instant dispute. The Organization asserted that clerical employees have always performed the hauling of crews at Fayetteville. The Carrier, to the contrary, refuted that assertion and counter-asserted that clerical employees never performed the work exclusively but, rather, it has been shared with contractors as well as other craft employees and Supervisors. With the threshold Scope Rule issue thus pinned between diametrically opposed assertions, it became the Organization's burden of proof to provide probative evidence demonstrating, at least to a prima facie extent, what the work practice was at Fayetteville as of May 16, 1981.
On this record, the Organization did provide extensive documentation showing that clerical employees have performed crew hauling at Fayetteville in the years leading up to the claim dates. However, the documentation does not reach as far back as the critical date. Thus, the Organization has not succeeded in establishing that the disputed work was protected by the "positions or work" Scope Rule in the instant dispute. Nor has it proven exclusive past performance prior to the critical date under the general Scope Rule.
Given the foregoing discussion, we find that the Organization's burden of proof to establish an Agreement violation has not been satisfied. Accordingly, we must deny the claim.
The Majority has erred in its reasoning and, therefore, a Dissent is in order. The subject dispute involved the Carrier's violation of the parties "position or work" Scope Rule when it used non-clerical personnel to transport train and engine crew members within the Milan Yard, Fayetteville, North Carolina, as well as between on-duty and offduty points.
In prior Award 37767 involving the same parties, same location and same Referee the Majority determined the following:
After determining in Award 37767 the work was covered work protected by the parties "position or work" Scope Rule the Majority "flip flops" and decides the work is not covered.
Absent the obvious fact that the instant Award is illogical and flawed we would point out that when the Award discusses the "position or work" Scope Rule compared to the former general Scope Rule it recognizes that specific work practices at individual locations is the measurement for proof of ownership of work and there is nor requirement to prove system-wide exclusivity. For example the Majority stated:
Simply put that even though the Majority erred in deciding ownership of the disputed work in the instate case it least it got it right that the parties Scope Rule is a "position or work" Rule. The record of the case is clear that the Carrier violated the Agreement and sold a bogus argument to the Majority. Therefore, I strenuously Dissent to the Award which is erroneous.