POSITION OF CARRIER: The specific defined duties of laborers are not outlined in any rule of their agreement. The employes cannot contradict this fact. The agreement does list "car yard laborers" but here again no defined duties or work are specificallly allocated to such laborers. (See Award 1596-Second Division). In addition, in this case, these cars were not cleaned in any car yard at Council Bluffs but were cleaned outside of any such car yard where no mechanical department employes are employed.

It has been the past practice on this property, in such instances as the present case, to contract cleaning of cars, to use section laborers or other employes, such as station employes, to clean them. Cleaning or sweeping of freight cars is not a monopoly of shop laborers. The employes in progressing the claim on the property have not produced and, furthermore, cannot produce any rule of their agreement outlining any specific work to be allocated to mechanical department laborers, nor any rule in their agreement which writes sweeping or cleaning of freight cars into a scope rule. Hence, there was no violation of their agreement.

It is noted employes ask for penalty payment. Without relinquishing our position, as above, we submit that in line with awards of this and other divisions of the National Railroad Adjustment Board, in event there is found to be a violation of the agreement, pro-rata rate only is proper.

For the above reasons, we respectfully request your Board to deny the claim of the employes.

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.

Parties to said dispute were given due notice of hearing thereon.

This docket advances claim for named laborers at time and one-half on specified dates when cars were cleaned by other than laborers at Council Bluffs, Iowa, in the old yards west of the depot where claimants had been employed until the train yard operation was moved to the new yards just east of the depot.

On claim dates it is shown that carrier contracted out the cleaning of grain cars. Later the cars were inspected by carmen forces from the east yards where claimants were currently at work.

It is fundamental that work covered by a contract with employes cannot be contracted out to others. We have previously ruled with this referee, in Award No. 3136, in a dispute between the present parties, .that where regularly employed carmen cleaned cars incidental to their own task that the rules did not make the work exclusive to laborers, therein following our Award No. 2845 to the same effect.

The present case is distinguished from those because here the work was contracted out and workers who are not employes cannot be said to have

AWARD