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 instant dispute challenges the Carrier's use of an outside contractor to dismantle and remove pole line materials on the territory specified in the above Statement of Claim. From the record before us, it has been chosen as a lead case among several that apparently raise the same issues.
According to the claim, on 13 days between October 2 and 20, 2006, the contractor cut down poles, as well as rolled up wiring, and over 15 days between October 23 and November 10, 2006, the contractor removed 582 poles, wires, and appurtenances. It is undisputed in the record that the work in question involved the removal of a wholly abandoned signal system pole line.
Distilled to its essence, the Organization contends that the work involved was covered by the Scope Rule of the applicable Agreement, which was confirmed by the content of a Letter of Understanding and Agreement dated August 18, 2005 ("Letter"). The Carrier, to the contrary, contends that the work was not covered by the applicable Scope Rule and the Letter has no application to the instant dispute.
Interestingly, in their claim-handling correspondence on the property, both parties cited prior Third Division Awards in support of their respective positions. Oddly, however, the Organization did not include either of the Awards it cited in its Submission to the Board. Similarly, the Carrier cited seven Awards, but only included one of them in its Submission. That one Award involved a different carrier and dealt with an "as is, where is" sale. The instant record does not include any contention by the Carrier that the work in dispute was performed pursuant to such a sale. Form I Page 3
According to the record, the Letter dealt with situations where the Carrier had non-functioning wire still on an active pole line with live wires. Arguably, the removal of the non-functioning wire could be construed as "maintenance" of an active pole line and come within the wording of the Scope Rule. It is understandable, therefore, that the parties would have developed the Letter to prevent potential claims associated with these locations where dead wire was commingled with active wire.
Although the text of the Letter does not clearly describe the linvts of its scope or purpose, its intended application does emerge from a careful reading of the onproperty record. The Letter says only this about its application:
On the property, the meaning of the "locations assigned" reference was disputed, but there was no dispute whatsoever about the reason the Letter came into being. The Organization's January 25, 2007 appeal letter contains the following paragraph to provide clarification:
outside party to pick up and remove this wire from the property after the L&N District employees cut it down. There was no discussion about the removal of poles or other wires at this time." (Emphasis added)
In connection with the foregoing, the Organization asserted that the locations in dispute here were listed as locations where the Letter was to apply. However, this Form 1 Award No. 40108
was effectively refuted by the Carrier. The Carrier contended that the Letter applied only where live wires and non-functional wires were present and commingled on the same pole line. In its March 23, 2007 reply on the property, the Carrier's letter stated, in pertinent part, as follows:
After the Carrier refuted the Organization's assertion about the locations where the Letter was to apply, it became the Organization's burden to provide evidence to support its position. On the record before us, the Organization never provided any listing to establish that the locations in dispute were encompassed within the Letter. Accordingly, we must find that the Organization failed to prove this critical fact. As a result, we must find that the Organization has not proven that the Letter applied to the instant dispute.
The foregoing discussion brings us to the actual text of the applicable Scope Rule. It reads, in pertinent part, as follows:
As written, the Scope Rule does not specifically state that it includes the removal of pole lines. Instead, the wording of the Scope Rule appears to limit its reach to the actual installation, repair, inspection, testing and maintenance of an active pole line. Therefore, the work in dispute here would not be covered unless it is encompassed by the general reference to "work generally recognized as signal work." As to this general recognition language, the Scope Rule becomes a general Form 1 Page 5
Rule. Accordingly, we must apply the principles that have been well-established by the Board to interpret a general scope Rule. To establish scope coverage in the presence of a general scope Rule, it must be shown that the employees have customarily and historically performed the work in dispute. The instant record is devoid of such evidence.
Given the foregoing discussion, we are compelled to find that neither the Letter nor the Scope Rule has been shown to reserve the disputed work to BRSrepresented employees. Accordingly, we must also find that the violation of the Agreement alleged by the Organization has not been proven.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
