Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39373
Docket No. SG-38862
08-3-NRAB-00003-050295
(05-3-295)

The Third Division consisted of the regular members and in addition Referee Edwin FL Bena when award was rendered-

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (Northeast Illinois Regional Commuter Rail ( Corporation (Metra)

STATEMENT OF CLAIM:



The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
Form I Award No. 39373
Page 2 Docket No. SG-38862
08-3-NRAB-00003-050295
(05-3-295)

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.




The Carrier used non-covered employees (BMWE-represented employees) to perform flagging functions on the dates and at the locations set forth in the claim.








The Scope Rule does not exclusively reserve flagging to covered employees. Flagging is not even mentioned in the Scope Rule. Absent such a specific reservation of work by the Scope Rule, the Organization must demonstrate a system-wide pattern of exclusive performance of such work by covered employees. That has not been done in this case. While covered employees can perform flagging functions, the evidence also shows that in the past other individuals such as Engineering Department Electricians, Maintenance of Way employees, Trainmen, local police and the Carrier's police have performed flagging functions at grade

Form I Award No. 39373
Page 3 Docket No. SG-38862
08-3-NRAB-00003-050295
(05-3-295)

crossings on the Carrier's property. The claim therefore lacks merit and must be denied. See Third Division Award 23537:






This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.




Dated at Chicago, Illinois, this 8th day of December 2008.