"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Burlington Northern Santa Fe:

Claim on behalf of Y. E. Jones, G. G. Tester and R. Blowers, for 32 hours each at their respective straight time rates, account Carrier violated the current Signalmen's Agreement, particularly Rule 1, the Scope Rule, when it used an outside contractor on or about November 11, 2002, to November 14, 2002, to install a concrete foundation for a generator at Tower 2, on the KCT, and deprived the Claimants of the opportunity to perform this work. Carrier's File No. 35 03 0014. General Chairman's File No. 03-002-BNSF-21K. BRS File Case No. 12738-BNSF."

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

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

At the time of the instant dispute, Claimants V. E. Jones, R. E. Blowers and G. G. Tester were headquartered at the Kansas City Terminal. During the period of November 11 through 14, 2002, the Carrier utilized a contractor to install the concrete foundation for a generator at Tower 2 on the KCT. The work occurred on territory governed by the former Atchison, Topeka, and Santa Fe (ATSF) Agreement. The Organization filed a claim on behalf of the Claimants for 32 hours each (eight hours per day for four days).

The Organization contends that because the generator was for signal purposes it was improper for the Carrier to contract out the work, which is contractually reserved to the Organization.

According to the Organization, the Carrier had customarily assigned work of this nature to BRS-represented employees and the work is consistent with the Scope Rule. The Organization contends that the Carrier's BRS-represented employees were fully qualified and capable of performing the designated work. The work done by the contractor is within the jurisdiction of the Organization and, therefore, the Claimants should have performed said work. The Organization argues that because the Claimants were denied the opportunity to perform the work, they should be compensated for the lost work opportunity.

Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. It contends that the relevant work does not belong to BRS-represented employees under either the express language of the Scope Rule or any binding past practice. According to the Carrier, controlling precedent involving these very same parties and the same issues has upheld the Carrier's position. The Carrier contends that the Claimants were former ATSF employees and, as such, the relevant Scope Rule was based on the former BNSF Scope Rule. The Carrier asserts that Third Division Award 37874 is determinative in this matter.

"In disputes of this kind, the threshold question for our analysis is that of scope coverage. There are generally two means of establishing scope coverage. The first is by citing language in the applicable scope rule that reserves the work in dispute to the Organization represented employees. The second method is required when the language of the scope rule is general. In that event, the Organization must shoulder the burden of proof to show that the employees it represents have customarily, traditionally and historically performed the disputed work. It is well settled that exclusivity of past performance is not required in order to establish scope coverage vis-a-vis an outside contractor."

"As background, there is no dispute that the Carrier used the forces of an outside contractor at the Kansas City Terminal Tower 3 [from April 23, 2001 through May 2, 2001]. Specifically, the installation of a foundation and handrail for a back-up electrical generator is at the center of this dispute.

The Organization asserts that the work performed by the outside contractor violates Rule 1, Scope, paragraphs (g) and (h).

The Organization argues that the work herein performed by outside contractors involved `current generating systems' and the `foundation support, concrete and form work' for the back-up generator .... It firmly denies the Carrier's position on the Scope Rule, the merged territories and the `Note' to such merger.

claim must be denied ...."

For the same reasons identified by the Board in Award 37874, we find that the Organization has been unable to prove that the work involved in this matter is either encompassed by the Scope Rule or that BRS-represented employees have customarily, traditionally and historically performed the disputed work.

Based on the record evidence, as well as the above-cited precedent, we cannot find that the work of installing a concrete foundation for a generator utilized for signal purposes is either encompassed within the plain language of the Scope Rule or that the work has historically and traditionally been performed by members of the Organization.

AWARD