The Second Division consisted of the regular members and in
addition Referee Lloyd H. Bailer when award was rendered.
SYSTEM FEDERATION NO. 26, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Machinists)
1. That under the controlling agreement the carrier improperly contracted one (Thew-Loraine) No. 5 Dragline out to the J. D. Pittman Tractor Company, Birmingham, Alabama, for general repairs which was completed in the month of January, 1957.
2. That accordingly the carrier be ordered to pay to Machinists A. R. Marshall, I. F. Baker and E. G. Fields, $2,432.25, to be equally divided among them account of this violation of -rule 52-of the Controlling Agreement.
EMPLOYES STATEMENT OF FACTS: The Central of Georgia Railway Company, hereinafter referred to as the carrier, contracted with the J. D. Pittman Tractor Company, Birmingham, Alabama, to give one Thew-Loraine No. 5, dragline, general repairs which work was completed during the month of January, 1957, at a total cost of $4,862.88, with work coming under the machinists classification of work rule 52, amounting to $2,432.25, the amount of this claim. Machinists A. R. Marshall, I. F. Baker, and E. G. Fields, hereinafter referred to as the claimants, held seniority as machinists with the carrier at Macon, Georgia, were assigned to handle repairs to roadway machinery at the time involved in this claim and were available for and qualified at this type of work.
This dispute has been handled on up to and with the highest designated officer of the carrier who has declined to adjust it.
The agreement, effective September 1, 1949, as it has been subsequently amended, is controlling.
POSITION OF EMPLOYES: It is the position of the employes that the carrier is without authority to contract work out to an outside concern that is specifically covered in machinists classification of work rule 52 as follows:
Carrier urges that the Board does not possess the authority to write rules, and the Board has consistently so held. The Board's holdings are based on the Railway Labor Act which clearly restricts the Board's authority to deciding
The Board has heretofore held that such limitations have been placed upon it by law, and that it does not have authority to write new rules. See Third Division Awards Nos. 6828, 6007, 5864, 4439, 4435, 2491, and others. Carrier prays, therefore, that a denial award is clearly in order for this one reason, if for no other. Carrier so urges.
The burden of proof rests squarely upon the shoulders of the petitioners. See Second Division Awards Nos. 2042, 1996, and others. Also see Third Division Awards Nos. 7226, 7200, 7199, 6964, 6885, 6844, 6824, 6748, 6402, 6379, 6378, 6225, 5941, 5418, 2676, and others.
2. Past practice most assuredly does not support the employes' position. Performance of the work by contract as outlined in detail in carrier's Exhibit A was in keeping with accepted past practice as shown by probative evidence.
3. The claim is in fact a request that the Board grant the machinists a new all-encompassing rule. That under such facts in the past this Board has correctly held it is without authority to grant new rules, and
4. Since the claim clearly is not supported by the current contract on this property, the Board should not do other than render a denial award.
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.
The determination in this case is governed by the conclusion reached in Award No. 3387 this day decided. 3388-12 441