Public Law Board No. 7104, upon the whole record and all the evidence, finds that the parties herein are Carrier and Employees within the meaning of the. Railway Labor Act, as amended; that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing and did participate therein.
The Claimants hold seniority in the Carrier's Bridge and Building Department on the Eastern Kentucky seniority district. The instant claim alleges that on July 23 and 24, 2001, the Carrier assigned three Track Department employees to install culverts and repair water lines. The claim asserted that this work was reserved to Bridge and Building Department employees by the Scope Rule and Rule 1 of the parties' June 1, 1999 Agreement.
In denying the claim, the Carrier asserted that the Agreement had not been violated, contended that the work had been assigned under emergency conditions, disputes) certain specifics as to the work and hours involved, and noted that Claimant
Watts was on vacation on one of the claim dates and was not available for duty. In its appeal, the Organization disputed that there had been an emergency which justified Carrier's asserted abrogation of the Agreement.
The Organization asserts that the work in question has customarily and historically been performed by Bridge and Building Department employees and is contractually reserved to them in accordance with the Scope Rule and Rule 1. These rules provide, in pertinent part:
With respect to the precedent cited by the Carrier, the Organization states that the cases are distinguishable, as they dealt with employees welding or loading scrap into their own cases, where this dispute concerns the installation of culverts and water lines on the main line, which is typically B & B work.
Before this Board, the Carrier asserted that the Organization did not identify any specific contractual language which would indicate that the work at issue was exclusively reserved to B & B Department employees. Absent such language, the Carrier states, it is a basic doctrine of contract interpretation that the Organization bears the burden of showing that a system-wide, exclusive right to such work exists by custom, tradition or
practice. The instant record, the Carrier states is bereft of such evidence. Thus, the Carrier concludes the claim must be denied.
The Board has carefully reviewed the record in its entirety, and concludes that the record is not sufficient to support the claim. In order to prevail, the Organization must demonstrate that only B & B Department employees can perform the disputed work, to the exclusion of any other seniority classification listed in the Agreement. The Organization relies upon Rule 1, but precedent under this Agreement establishes that the language of Rule I, in its reference to the "primary dudes" of each classification, does not secure work exclusively to any seniority classification listed therein. As was held in Third Division Award 37319, involving a similar dispute on this property, "The reference to `primary duties' in the first sentence of Rule 1 suggests that there is some latitude among classifications that allows employees in one classification to perform work of another classification." The Organization points to no other contract language establishing that the disputed work was intended to be performed by only B & B employees, and, as the Carrier states, there was no evidence presented of a past practice sufficient to establish the right of only B &B employees to perform the work in question. Therefore, the claim must be denied.
