r 9













                The Carrier has declined this claim."

Page 2 PLB 7101
 ` Case No. 2

 FINDINGS:
The Board, upon consideration of the entire record and all of the evidence, finds that the parties are Carrier and Employee within the meaning of the Railway Labor Act, as amended; that this Board is duly constituted by Agreement; this Board has jurisdiction over the dispute involved herein; and that the parties were given due notice of the Hearing held.

 All Claimants have established and hold seniority on their respective classes in the Maintenance of Way Department. On the pertinent dates, Claimants were regularly assigned to positions on Gangs 8356 and 8539 working compressed 4-day work weeks, scheduled from 6:00 a.m. until 4:00 p.m. Monday through Thursday, with Friday, Saturday and Sunday designated as rest days.

 On July 5 and 6, 2001, the Carrier allegedly assigned outside forces (McGuire & Nester Construction Co.) to perform alleged Maintenance of Way and Structures Department work, specifically, the removal of ballast from road crossings and between road crossings and adjacent tracks in preparation for a new road crossing installation at Mile Post 35.0 on the Mococo Line in Martinez, California. The Contractor employed one foreman, one assistant foreman, machine operators for a backhoe, end loaders, a swing loader, drivers for 2 dump trucks, 10 laborers and welders to remove ballast from road crossings and between road crossings and adjacent tracks. The Contractor's employees worked approximately 17 hours each over the course of the two days.

 The Organization contends that the Agreement was violated when the Carrier assigned McGuire & Hester Construction Company the work of removal of ballast from road crossings and between road crossings and adjacent tracks in Martinez, California on July 5-6, 2001. The Organization claims that it was improper for the Carrier to contract out the above-mentioned work, which is work that is properly reserved to the Organization.

 According to the Organization, the Carrier had customarily assigned work of this nature to the Carrier's Maintenance of Way Employees. The Organization further claims that the work in question is consistent with the Scope Rule. According to the Organization, the Carrier's Maintenance of Way Employees were fully qualified and capable of performing the designated work. The work done by McGuire & Hester Construction Company is within the jurisdiction of the Organization and therefore Claimants should have performed said work. The Organization argues that because Claimants were denied the opportunity to perform the relevant work, Claimants should be compensated for the lost work opportunities.
 Page 3 PLB 7101
 Case No. 2

 Conversely, the Carrier takes the position that the Organization cannot meet its burden of proof in this matter. The Carrier contends that the work contracted out was that of removing ballast from road crossings and between road crossings and adjacent tracks, which the Carrier claims does not belong to the Carrier's BMWE represented Employees under either the express language of the Scope Rule or any binding past practice.

 We first note that at the Arbitration Hearing, the parties stipulated that the Notice issue was not in question. Therefore, we find that we need not reach that issue.

 Next, we reach the question of whether the work in question has been traditionally and customarily performed by the Organization. In Special Board of Adjustment No. 1016, Award 150, the Board framed the scope issue as follows:

          "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 disputes 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-avis an outside contractor."


In the instant case, we have carefully reviewed all evidence regarding the question of whether the Organization has proven that the work involved belongs to the Organization. First, we note that the work of removing ballast from road crossings and between road crossings and adjacent tracks in preparation for a new road crossing installation is not specifically identified in the Scope Rule.

 We next turn to whether there is sufficient evidence for the Organization to have proven that it has customarily, traditionally and historically performed the disputed work. In the instant case, while the Organization has presented some evidence to show that the work in question belongs to the Organization, that evidence is insufficient for the Organization to meet its burden of proof. See Public Law Board No. 6537 above. See Also Third Division Award 37365 (Goldstein), Public Law Board No. 4402, Award No. 20, Case No. 20, Award No. 28, Case No. 28; Public Law Board 6537, Award No. 1.

 Based on the evidence in this matter as well as the above-cited precedent, we cannot find that the work of removing ballast from road crossings and between road
 Page 4 PLB 7101
 ' Case No. 2

 crossings and adjacent tracks in preparation for a new road crossing installation is definitively encompassed within the plain language of the Scope Rule or that the Organization has been able to prove that this work has historically and traditionally been performed by members of the Organization.

 Thus, having determined that the Notice was proper and that the work was not within the scope of the Organization, we find that the Organization has not met its burden of proof and the Claim is therefore denied.

      The Claim is denied.

Page 5

 PL,B 7101
 Case No. 2

 AWARD
Claim denied.

 v Steven NT Bierig
 hairperson and Neutral Member

 ~IY2
Dominic Ring
 Carrier Member

 Dated at Chicago, Illinois this 2- ~O

 Roy obinson
 Or nization Member

 day of ~~ '' 2009.