PUBLIC Lk4T BOARD PTo, 1210 AWARD No.
PARTIES TO DISPUTE: ' Baltimore & Ohio Railroad Company
. Brotherhood of Maintenance of Way Emplloyees .
 STATEMENT OF CLAIM: 1, Carrier violated the Agreement when it assigned Train
 Service Employees as Crossing Watchmen to control traffic
 over a temporary detour crossing at Miami St., Rossford, Ohio,
 on or about July 22, 1968. -
 2, Carrier shall now compensate Maintenance of Way Employees
 E, E. Chenetski, Albert VonPoppel, C. W, Yates and C. J, Basset
 - at their respective rates of pay, beginning July 22, 1968 and
 continuing until the work has ceased or an employee is assigned
 in accordance with the Maintenance of Way Agreement.

 STATE14ENT OF FACTS: Due to the construction of a new vehicular bridge to carry
 traffic over -the Carrier's tracks at Miami Street a temporary
 two lane grade crossing over the tracks was constructed for the
 purpose of rerouting vehicular traffic. This grade crossing
 passed over three yard tracks and Train Service Employees were
 assigned to control said traffic when switching movements
 approached the crossing and/or passed over it. The movement
 of trains at this point required protection on a 24 hours per
 day basis with a single trainman so assigned to each of three
 shifts, Manually operated flashers were installed at tnis
 - temporary crossing and were activated by the above referred to
 trainman, in addition to his other duties at the location.
 POSITION OF P;IRTIES;
 CARRIER: The trainmen assigned were Utility Men-Flagmen which position
 PL Board No. 2210 AWARD No. I
 1
 POSITION OF PARTIES: -



    ·. the crossing, and -

                  2, Flagging the train to a stop if the highway crossing could

                  not be cleared, and -

                  3. Assisting in switching operations by passing signals,

                  cutting the..train at the crossing when necessary and


                    · making draw bar and air hose uncouplings and couplings.


          ` Carrier averred that the employees assigned had indeed flagged

                  trains, passed signals, and uncoupled and coupled cars and air

                  hoses in the performance of their duties; that this was work

                  belonging to train service employees as distinguished from the

                  work of Crossing Watchmen; and that neither the Scope Rule

                  nor any other rule of the Agreement reserves exclusive right

                  to the work in question to Maintenance of Way Crossing Watchmen.


                                                              a

POSITION OF EMPLOYEES: Claimants alleged that the work performed was work belonging to
 Crossing Watchmen. The primary responsibility of the men assigned
 was to control vehicular traffic over the crossing. The
 Organization stated that such switching as may have been done
 by the Train Service Employees was done for the convenience of '
 the train crew only, in order to expedite the work of the train
 crew, but that the such employees were given no specific
 instructions to assist train crews who, as part of their
 assignment, had the duty of performing such work. In summary,
 the Carrier violated the Agreement when it assigned other than
 Maintenance of Way employees to perform Crossing Watchmen duties
 "which are reserved for employees under the Scope of this
 Brotherhood Agreement."
 PL Board No. 1210 AWARD 'No. 1
 OPINION OF BOARD: There is an obvious conflict between the parties as to
 nature of the assignments involved herein insofar as the
 basic or primary duties performed were concerned together
 with the question of exclusivity under the Scope Rule of
 the Agreement.
 This Board has carefully reviewed the partisan submissions
 and exhibits and makes the following observations:
 l., The record shows that the assigned employees did, in
 fact, line switches, give signals to train'crews, and
 uncouple and couple cars and air hoses as well as activate
 flashers to warn approaching vehicles.
 2. The Organization did not refute the fact that the foregoing
 duties are those of the Utility Man-Flagman except to state
 that such work was performed merely as a convenience to
 the train crews involved.
 '3. The referred to Scope Rule of the Agreement is similar, if
 not identical, to the Scope Rules contained in numerous other -

              _ Agreements between the Organization and other Carriers. It

                    is of the general type which lists Crossing Watchmen as a

                    class of employees covered by the Agreement but does not


                    prescribe the work reserved to such employees. -'

                  This Public Law Board is an adjunct of the National Railroad

                  Adjustment Board and therefore, of necessity, must be guided by

                  the principles and procedures of that organization. It is

                  axiomatic, and the DRAB has so held on numerous occasions, that

                  in the face of a Scope Rule such as the one contained in the instar

                  Agreement the burden of proof rests with Petitioner to show that

PL Board No. 1210 AWARD No. 1
 r custom and past practice on a particular property
 · have established exclusivity insofar as the right
 to disputed work is concerned. Mere assertions
                  and/or allegations are not sufficient to successfully .

                  support ~. claim.

                  Both Petitioner and Carrier cited various prior

                  Awards in support of their respective positions.

                  Petitioner relied heavily upon Award No. 26, of


          ' Special Board of Adjustment No. 293, wherein it was


                  stated:


                  "The evidence convinces us that the train service employee here involved was used arimarily to' protect the temporary road crossing from vehicular traffic belonging to the contractor." Emphasis added. The Carrier, in the instant case, utilized the services of a Utility Man-Flagman whose duties, referred to previously herein, appear to describe precisely the nature of the work a performed at the location in question. The record before us leaves much to be desired in attempting to resolve the question as to what the prima ry responsibilities were of the employees


                  involved.

                  Nevertheless, Petitioner has bottomed his submission on the alleged violation of the Scope Rule of the Agreement. As previously stated, the Scope Rule in question is of the general type, the thrust of which is that when Crossing Watchmen, per se, are used they will be governed by the Rules of the Agreement pertaining to employees in the Maintenance of Way and Structures Department. The Agreement is silent, however, as to the kind of work reserved to such an employee. Therefore,

° ` (5) ,. _
 °PL Board No. 1210 `· AWARD'Na. 1

                      Petitioner is obligated to show by probative evidence that the work in dispute is reserved to employees under their Agreement based upon custom and past.practive of the Carrier involved. The record in this case does not show that Petitioner has met such burden of proof. Numerous recent Awards of the HRAB have treated with just this type of situation, a few of which are referenced below in part as follows:


                        Award 12022 stated: "Petitioner relies on the Scope Rule to support its claim. The Scope Rule in the instant case

        . does not describe the work reserved to the class

                        of employees covered by it. Train movements over

                        public highway crossings have been protected by

                        several methods, viz., by train crews, manually by

                        crossing tenders and telegraphers, and by automatic

                        signals or gates . in other words the work

                        in question does not exclusively belong to the said

                        watchmen and they have not performed it to the

                        exclusion of a71 other employees."


Award 14729 stated:
 "The proof fails to show that the work involved was
 the exclusive work of employees covered by the
 ' Maintenance of Way Agreement nor does the Agreement
 contain any provision that affirms that all such work
 belongs exclusively to employees covered by Carrier's
 Agreement with the Organization."
 Award 18243 stated:
 "The Scope Rule of the Agreement is of the general -
 type and has been held to be such in a number of prior
 awards of this Board. . . Under such general type °
 scope rules we have consistently held that the burden
 rests upon Petitioner to show an exclusive right to
 the work involved based on history, custom and practice."
 The claim is denied for the reaso s stated herein.
 C. Robert Roadley, Neutral Member

                                              i

                      Ic~~

                      . s~!~y".iLi~

          A. - 'unningham ~ ployee i`.~`.ember L. W. Burks, Carrier Member

          BLt · ore, Maryl

          March 11, 1974