PARTIES ) TRANSPORTATION-COMMUNICATIONS UNION
 TO )
 DISPUTE ) NORFOLK AND WESTERN RAILWAY COMPANY
STAT OISLAIM .
 I . Carrier violated and continues to violate the provisions of Rule I
 (Scope) of the Agreement dated January 8, 1979, when on
 November 26,1986 and continuous each day thereafter, when it
 requires and/or permits an outside company known as Brown's
 Limousine Crew Car Incorporated headquartered in Dallas, Texas to
 perform that portion of work assigned to the clerical position of
 Clerk-Callers and Ice House Foremen at Portsmouth, Ohio. This
 work involves that portion of clerical work of transporting of
 Carrier's service employes via Carrier's vehicles which was
 performed by the specified positions prior to January 12, 1979 and
 subsequent thereto until a portion of said woos was.rernoved
 commencing on November 26,1986.











OPINION OF BOARD


Limousine to transport certain crews at Portsmouth, Ohio. Prior to that time, transportation

 of those crews was performed by Yellow Cab Company. Additionally, the work was

 further shared by supervisors and clerical employees (Clerk-Callers and Ice House

 Foremen) using Carrier-owned vehicles.




previous changes in assignments and rest days coupled with an increased volume of crew hauling performed by Brown's after Brown's replaced Yellow. As such, the Organization seeks compensation for the. three senior idle clerical employees. The Carrier asserts that the crew hauling work has always been shared work and the use of Brown's was merely a transfer of limousine services from Yellow who could no longer provide adequate service and such services are performed by Brown's when Clerk-Callers and Ice House Foremen are not available. While the Organization asserts that Brown's is using Carrier-owned vehicles to perform the crew hauling work, the Carrier asserts that it does not own any of the equipment used by Brown's and has not replaced any clerical employees with personnel from Brown's.
 The parties further offered statistical information concerning the crew hauling work by Brown's. According to the Carrier, its data shows:

 Countering the Carrier's statistical information, the Organization asserts that it made a study covering a 70 day period in February, March and April 1988 and that study shows that Brown's made approximately 486 yard trips and 45 road trips for a total of 531 trips. According to the Organization, the Carrier's statistical information shows drat Brown's performed just over five trips per day during December 1986 and January 1987 whereas the Organization's information shows that during the period it examined, Brown's performed an average of 7.5 trips per day - an increase of 50% over the period examined by the Carrier. See Carrier Exh. C at p. 19.
 In cases such as this, the burden is upon the Organization to demonstrate a violation of the Agreement. Given the numerical approach that the parties have taken to this case, in
                              PLB 4454, Award 27

                              Crew Hauling

                              Page 3


order to satisfy its burden in this matter, the Organization must make a demonstration based. upon data that is, for all purposes, in the exclusive control of the Carrier. Tn an effort to meet its burden, the Organization conducted its own study and, understandably, relies upon the results of that study. While the Organization's study may have proceeded using inaccurate assumptions, examined a period of time too remote from the relevant dates, or may not otherwise have been as accurate as the Carrier's study, given the Organization's disadvantage of arguing about data that it does not have direct access to, we find that the Organization's study takes this case out of the realm of those cases where only unsupported assertions are made which ordinarily requires a denying award due to lack of evidence to support unfounded allegations. But, given the approach the parties have taken in this matter, the Organization's showing is sufficient to shift the burden to the Carrier not to rebut the Organization's evidence, but to at least warrant a more detailed examination of the Carrier's records. The Carrier cannot now attack the validity of the Organization's study when the data needed to resolve this dispute is solely within the control of the Carver. Therefore, standing back from this dispute, the only valid way to determine if Brown's is performing the same amount of work as Yellow previously performed (as argued by the Carrier) or more work than Yellow previously performed (as argued by the Organization) is for the parties to conduct a joint check of the Carrier's records covering an agreed upon relevant period of time spanning periods both before and after the date Brown's took over gver Yellow's functions. We must caution the parties concerning the results of that check. Merely because Brown's performed more or less trips than Yellow during a relevant period may not be sufficient to conclusively establish either party's position in this matter. Other factors alluded to during the presentation of this dispute must also be taken into account. For example, was there a significant increase or decrease in the numbers of crews requiring transportation during the relevant period? Did the covered employees who claim the work experience an increase or decrease in their other duties so as
                              PLB 4454, Award 27

                              Crew Hauling

                              Page 4


to affect that employee compliment? Were there increases, or decreases in the numbers of other non-covered employees who performed crew hauling? Were the covered employees otherwise unavailable for call to transport the crews? The answers to those and other similarly relevant questions may not be apparently evident after the joint check of the records is made. But, based upon this record, we can only conclude that the record the parties have asked us to rule upon for such an important question is incomplete. The starting point in any analysis of the issues in this case must be at the amount of work Brown's performed as compared to Yellow and we do not have sufficient information to make a reasonable assessment of that question. We shall therefore remand these proceedings to the parties to conduct a joint check of the Carrier's records covering an agreed upon period of time and we shall retain jurisdiction for any disputes that may arise after such check is conducted. As always, the burden will ultimately be upon the Organization to demonstrate that the work it claims has been removed was, in fact "removed" and was, in fact, its work.
 The Carrier's arguments do not change our conclusion. First, in the context of this case, we find that tire employees on whose behalf the claim was pursued have been sufficiently described. The Claimants are the senior employees who have allegedly lost work or who have been deprived of work opportunities as a result of any improper removal of covered work. See e.g., PL13 4289, Award 9 at 7 ("... Claimants need not be specifically named so long as they are easily and clearly identifiable ... [and] it is `unnecessary to name the Claimant where he is so specified or designated that Carrier may identify him by its records."'),
 Second, we find that the claim has been timely presented. Rule 38 requires that claims be filed "within 60 days from the date of the occurrence on which the claim or grievance is based." The focus of the dispute is not upon the Carrier's use of an outside contractor to perform crew hauling. In this case, the Organization does not contest the
                              PLB 4454, Award 27 Crew Hauling Page 5


Carrier's general right to do so. Rather, the focus of this dispute is upon the effect that the change from Yellow to Brown's may have had on the covered employees over a period of time as a result of allegedly increased crew hauling by Brown's to the determent of the covered employees.
 Third, the Carrier's argument that the Organization has not demonstrated that the crew hauling work is exclusively its work is insufficient to cause a denial of the claim. See Award 3 of this Board at 4:

        The positions or work Scope Rule involved in this case "reserve[s] to employees that work which was assigned under the Agreement at the time the rule was adopted." Third Division Award 26507. As such, "The Carrier may abolish positions, but the work of those positions must be eliminated, not assigned to others either directly or ... by indirect means." Third Division Award 26773. Further, and contrary to the position of the Carrier in this matter, "'the Organization need not prove that the work at issue has been performed exclusively by members of its bargaining unit." Award 26507, quoting PLB 3178, Award 4.

Fourth, the previously decided awards relied upon by the Carrier as res judicata are not dispositive. PLB 1790, Award 98 found, as the Carrier argues, that "transporting train crews is not exclusively the work of clerks." Id. at 2. However, that award was issued under the 1976 Agreement and not under the current Agreement which, for the first time, contained the parties' positions and work scope rule.
 PLB 2668, Award 67, which was decided under the current scope rule, did state (id. at 2) that:

        A review of the record of this case reveals that the Organization has not demonstrated that the work of crew hauling belongs exclusively to Clerks at Portsmouth nor has it demonstrated that crew hauling is totally preformed by Claimant when he is regularly assigned It is clear from the record that crews have been transported by Clerks, by Supervisors, and by taxis at Portsmouth for an extended period of time prior to tire claim date.

But, Award 67 is not dispositive for two reasons. First, from a reading of the award, it appears that the Organization did not demonstrate that the particular work at issue was actually the covered employee's work. That is, the evidence showed that the work
                              PLB 4454, Award 27

                              Crew Hauling

                              Page 6


was shared and the Organization did not demonstrate that the particular work assigned to the taxi company would otherwise have been assigned to the covered employee. Under the positions and work scope rule, such is the Organization's burden in a shared work context. Second, and more fundamentally, the majority in Award 67 relied upon PLB 1790, Award 98, supra, as "the pertinent award ... on point in this instance". Id. at 3. $owcver, as found earlier, Award 98 decided the issue under the parties' prior scope rule and not under the scope rule involved in this case which rule came about after a rather protracted and active labor dispute and was a revision from the prior scope rule to a rule that preserves "Positions or work within the scope of this Rule I". The Carrier's reliance upon PLB . 2668, Award 69 suffers the same flaw as its reliance upon Award 67 of that Board.

 AWMW
 The proceedings are remanded to the parties consistent with the Opinion of this Board to conduct a joint check of the Carrier's records to determine if Brown's Limousine has performed crew hauling work that would otherwise have been performed by covered employees. Jurisdiction over the matter is retained by this Board and, given the length of time this matter has remained in contest between the parties, any disputes shall be expeditiously resolved by this Board.

                    Edwin H. Benn

                    Neutral Member


      ~S5ev.~


_ ,r H. Mullenix,. Jr Campbell
    Carrier Member Organization eriber


Norfolk, Virginia

 May 17 , 1931
                                  AWARD NO. 27 CASE NO. 27


              PUBLIC LAW BOARD NO. 4454


PARTIES ) TRANSPORTATION-COMMUNICATIONS UNION
 TO )
 DISPUTE ) NORFOLK AND WESTERN RAILWAY COMPANY

 On play 17, 1991, this Board (Carrier dissenting) remanded the proceedings to the parties for the .production of further evidence through a joint check of the Carrier's records concerning the organization's claim that the Carrier permitted Brown's Limousine to transport crews in violation of the scope rule. t Given the numeric approach that the parties took in presenting this trtaaer thmgh the use of information showing the volume of work perfq=ed by Brown's as compared to Brown's predecessor, Yellow Cab, and further given that the Carrier argued that the Organization failed to meet its burden of proof based upon information that was in the exclusive control of the Carrier, we held:

        _. Mhe only valid way to determine if Brown's is performing the same attronnt of work as Yellow previously perfumed (a argued by the Carrier) or mores work than Yellow previously pafomied (as argued by the Organization) is for taw panda to ooct a joint check of the Curler's records coveting an agreed upon relevant pedrnl of titre ' periods both before amt after the date Brown's nark ova Yellow's fits.

Aside from being within our discretionary authority concerning the manner and method in which to conduct proceedings before this arbitmi body, our action was in conformance with the specific authority given to us by the parties as set forth in the agreement establishing this Board dated November 2,1987 at 3,17:

                o


        This Board shall have authority to request the production of additional evidence from any party ....


i The relevant facts ate set forth in our opinion of that date,
                                FL13 4. , Award 27 Crew hd,tung Page 2

Rather than submit to the joint check of its records, the Carrier brought suit in federal court to set aside our action. The Organization counterciaimed for enforcement. Finding that no final award issued, the court dismissed the action for lack of subject matter jurisdiction. Norfolk and Western Railway Company v. Transportation Communications International Union, Civil Action No. 91-312-N (E.D. Va., December lb, 1991).
      The Carrier continues to decline to submit to a joint check of its records.

This Board has no enforcement power. We cannot compel the Carrier to submit to the joint check. Indeed, the agreement establishing this Board recognizes that we can only "request" the production of additional evidence. However. not being able to require a party to act does not leave us unable to resolve disputes when we deem that further information is necessary and that information is not forthcoming. We can draw inferences based upon the refusal of a party to produce evidence. It is well-accepted that failure to produce such records can lead to an inference that had those records been producod, the records would not have supported the position of the party refusing to disclose the records. 2
 Under the circumstances of this case, the Carrier's refusal to submit to a joint check of its records leaves us no choice but to draw an inference adverse to the Carrier's position in this matter. The Organization has attempted to persuade us concerning the merits of its claim through the use of a numerical analysis teased upon information it gathered. 'fire Carrier has attempted to refute the Organization's showing by reliance

    See Eli ad froari, HowArbitradort World (HNA. 4th ed.), 310 (citation ornittedl: "An aabivamr has no tight to compel the production of docutorats ... by either side, He may, however, give such weight as he deems appropriate to the failure of a party to produce dacutexnts on demand ...." See also, Hill and Souicropl, Evidence In Arbitsation (BNA. 1980), 29 (citation ornittedl: In the arbiaat setting, concepts of "best evidence" will generally be applicable in tie case where more reliable evidence is available, yet the advocate fails to make use of the better evidence. In such a case, the were failure, absent a satisfactory . eaplanatimm may,... "have evidentiary weight adverse to the ptoffeer of the lesser valued proof." As such. the advocate is advised to use the most reliable evidence available, irrespective of its form ....

                                PLB 4, Award 27

                                Crew ..audng

                                Page 3

upon information final its records. fn light of the approach taken by the parties, this
 Board determined that the best source for the information would be from the Carrier's
 records and therefore, in accord with our discretion and further in accord with our
 authority, a joint check of those records was decided upon as the appropriate vehicle for
 best assisting in ascertaining the facts and the relative strengths and weaknesses of the

 parties' positions. 'Me Carrier's refusal to submit to that joint check leaves us no choice
 but to conclude that had the Carrier produced those records, then the contents of those
 records would have been inconsistent with the Carrier's position in this case.;
      gut, what is the result of the adverse Stated differently, in tight of the

adverse inference drawn, what becomes of the merits of the claim? We were previously
 careful to point out that

 _. - Examination d the record in this matter shows that after the claim was filed on January 15, 1987 (Car. Exh. A). on July 14;198? the Otstanization unsuocessfully requested "a more check of the records for each specific shift acrd data". Sea Car. Exh. C at p. 8 of 34. Thus, while the Orgarfatbn did request a joint dtedt of the Curlers recoeda before this Board in its Submission at l2, the Idat request for a joint check of the Cania's records cam long befoce the matter was submitted to this Board.
 It was the C wrier who first died the numbers of trips shown by its taoods. See Car. Exit. C at p. t I of 34 dated September 7, 1987. it was in rebuttal dated June 28. 1988 that the Organization cited the results of its study of the volume of work performed by Bp's. See Car. Exh. C at p. 19 of 34. Thus, on the property, it was the Carrier who frost raised oho specific volume o work as indicated by its :records. In its ptesematitm to this Board, it was the Carrier who relied so lxavily upon the numbers demonstrated by its records and argued that the prganixcmttd not adequately refute that evil. See Car. Submission at 12-13 (emphasis addAdj; Simply, the Organirdp uevet presented any information on die property relating to specific tamed occurrences wherein work had been removed from the Scope of the Ckrk'a Agreement The Carrier, however, did mpottt that its records Indicated that the Yellow Cab Company me& 205 trips for the Curia during October 1986. Brawn's Limousine Service replaced den Yellow Cab Company in November, 19K acid subsequently made 124 trips during
              ,1986, and ?02 trip during January 1987, Based on these figures, u

        is clear that the rate of Brown's Umousine Service was merely a transfer of

        service from dm Yellow Cab Company. e

            while the Orgznkadoo dide

        cite a "study" of the outside firm using a 70 day peaky cove* dates in February, March and April, 1988 ..., these "rratisdcr are baeled by no hard data ....

Therefore, in terms of the nuts studs, "first blood" was drawn by the Carrier and not by the Organization. 'Me Organization's study only cow after the Carrier resorted to its numeric approach. In terms of presentation of the dispute to this Board, knowing how the record was developed on the property with the Crier's reliance upon the data in its records which it would not further divulge, the OrganLaacion understandably relied (in part) upon the results of its study to argue that its burden had been met. See Org. Submission at 4. Having raised the issue. the Carrier cannot now rely upon the data in its records and at the same time refuse to divulge the contents of its records.
                                PLB,' Award 27

                                Crew ruling

                                Page 4


        We must caudon the parties concerning the restarts of that check. Merely because Brown's performed more or less trips that Yellow during a relevant period may not be sufficient to conclusively establish either pony's position in this matter, other factors alluded to during the presentation of this dispute must also be taken into account For example, was there a significant increase or decrease in the number of crews requiring trattsportatiat during the relevant period? Did the covered employees who claim the work experience an increase or decrease in their other duties so as to affect that employee compliment? Were there increases or dateases in the nunnhers of other non-covered employees who perforned crew hauling? Were the covered employees otherwise unavailable for call to transport the crews? The answers to those and other similarly relevant questions may not be apparently evident after the joint cheek of the records is made. But, based upon this record, we can only conclude that the record the parties have asked us to rule upon for such an impoetant question is incomplete. The starting point in my maiysia of the issues in this sax must be at the amount of worse Brown's performed as compared to Yellow and we do not have sufficient information to make a reasonable assessment of that question . ... As always, tire burden will ultimately be upon the Organizadoo to dmmonsufate that tire work it claims has been removed was. in fact "removed" and was, in fWt, is wad.

The key is the sentence Me answer to those and other similarly relevant questions may not be apparently evident after the joint check of the records is made" (emphasis added). Under the circumstances of this case and given the Carrier's refusal to disclose the relevant 'records, the inference we are compelled to draw is that not only are
 tire contents of tire documents adverse to the Carrier's position in terms of the numerical infoon contained therein, but the answers to the types of questions discussed above are also adverse to the Carrier's position. In short, as a result of the adverse inference resulting from the Carrier's refusal to submit to a joint check of its records in this case, we find that the Organization has carried its burden. We shall therefore sustain the

 - We fail m understand the Cuher's reluctance in this matter. It is not uncommon in proceedings
 urcler the Wwty Labor Act fat carries m produce information from their records to rebut or support a
 posidtm. Fee MmpK in dispute ring merger protection (e.g, such m udder the 1964 agreement
 involving the shop tadts, disputes which are beard by SBA 570 and other similar apartments), carriers
 routinely supply in concerning revenues and other indices of levels of business in an effort to
 crate tt decline in business in reuse to assertions that employees are entitled to pexecdve
 betmfits. If in this case the Carrier was sand about the disclosure of ittforuation that it considered
 sensitive, then seeps coin have ban taken to sanitize that information or even to agree (a through
 invoking the esistauce of this Board) upon procedures similar to procacdve orders utilized in court
 to ensure the imegtity and confidentiality of the Wotmatioo. But the Carrier cannot expect to
 refute the kind of information developed by the Organization in this case and at the same tithe refuse to
 divulge any record information.
 We do not view our decision in this matter to in anyway alter the traditional burden that is placed upon an organization in a contract dispute. That burden remains with the Organization and [continued)
                              PLB .,4, Awardd 27

                              Crew Hauling

                              Page 5


      Any Further aspects of mitigation of amounts due the affected employees under

this award ate left to remedial procedures,
 0SL17N
 Claim sustained.

                  ~~N ~~J'li'1

                  WI

                  Neutral Member


    T. 3. a cntx~, r.

    Carrier Member Orgatuzatrori Me


Norfolk, Virginia

 Dated: F-4 lot, Qe.~y 6'I, l q c-
our dewrnbnations ttOOgbartt only andetrxaro that burden. It tray well have been the after the joint check
 of the tecutds wen cognpigned that' usage of Brown's would have barer demonstrated as urged by
 the Organizadcas. But, as qatd ere, we were careful to point out that that slowing atme would not
 necessarily have been sufficiew M ptevail in this matter because otter queers remained concerning what
 those showings actually ttntat that the Organization had the burden of addressing. It was only the Carrier's
 refusal to provider any won after it rust raised the issue (see note 5, supra) that left as with results of
 the adverse ' inferesace that rm only were the numbers adverse to rite Carrier's position, but the weswers to
 the kinds of quesdom we posed as being part of tie Organization's burden were sitaifuly found adverse to
 the Carrier's positim
 Finally, we do not view our decision as any future license for the Orgattixation to have unfettered access to the Carrier's records. Our determination in this matter relates only to the specific and unique facts in this case. It is not our intention that au action in this matter be interpreted as requiting a joint check of the Carrier's records merely because the Organization alleges, without any proof, that scoope ride protected work has been given to strangers to the Agrxtnent. Here, the Carries first raised the issue, refused to disclose information and the Organization dertwnswated through the evidence it was able to gather chat its position was more than just wishful speculation.