The Second Division consisted of the regular members and in
addition Referee D. Emmett Ferguson when award was rendered.
SYSTEM FEDERATION NO. 8, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Machinists)
The Board would be required to write a new rule to support the penalty requested by the organization as the persons for whom penalty is claimed are not covered by the agreement or employes; the agreement requires payment only for work performed, and this penalty is for work not performed; all positions are required to be regularly assigned and employes occupying are limited to 40 hours assigned per week for work actually performed.
The request of the employes is clearly for a penalty. The request is clearly for a penalty not contained in the agreement. And, it is selfevident the request is one for the Board to rewrite the agreement for the employes through the guise of an interpretation and thus exceed their lawful authority and jurisdiction.
The penalty claimed is clearly not due under the agreement, and the carriers respectfully request the claim be denied.
Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, deny each and every, all and singular, the allegations of the organization and employes in alleged unadjusted dispute, claim or grievance.
For each and all of the foregoing reasons, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, respectfully request the Second Division, National Railroad Adjustment Board, deny said claim, and grant said railroad companies, and each of them, such other relief to which they may be entitled.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe 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.
It is clear from the facts submitted in this docket that carrier sent 51 of its cylinder liners to the E. M. D. factory for over-sizing, which consists of reboring, grinding, honing, testing and packaging. After the work was completed, the oversize was noted and the cylinders were returned to the carrier. The material continued to be the property of the carrier at all times.
From the work described and the exhibit offered, we conclude that that was in fact repair work such as had previously been done by the employes who must have had the required skill and using the necessary facilities provided by the carrier.
It follows as a necessary conclusion that this action deprived the employes of the work covered by their agreement and that the rules have been violated. 315 9-3 2 432
This Scope is paramount to the question of ownership. The Carrier as an employer did not surrender at the bargaining table the right it exercised in this case nor does the written agreement inhibit the Carrier in this respect. None can say that the claimant performed work specified in the agreement in the Reclamation Plant and Maintenance of Equipment Department, therefore the Shop Craft Agreement involved would not have application here and this Division is beyond its statutory authority in making an award in his favor.
which is particularly fitting to this case for the work at issue in that award, as here, was not performed in the Maintenance of Equipment Department.
The Agreement only covers work which the Carrier has to offer. We dissent.