"It is to be noted that in the definition of a helper (Section 5, Article 1), there is no inhibition against the carrier employing laborers to perform certain work, such as that outlined above in connection with the submission of carrier's exhibits A, B, C, D, E, and F, incident to the installation or maintenance of signal apparatus. It cannot be denied that on the properties of this carrier it has been a long standing practice to use laborers for laborers' work when needed in signal gangs. The laborers' work involved in this dispute had no real relation to what constitutes signal construction or practice.

"That this is only one of other attempts to foist an unnecessarily expensive practice on the carrier in connection with laborers' work is evidenced by that part of Decision No. 2493 of the United States Railroad Labor Board, which disposed of the argument of the employes' representative in the following language appearing in the opinion in the decision:

'The Board recognizes . . also that certain service justifies the classification and rating of laborer . . . .

The United States Railroad Labor Board stated in the opinion in Decision 2493 that:

'The dispute as submitted to the Railroad Labor Board is of a general character and does not deal with the specific duties required of any one individual or position, but rather with the duties required of all employes of the signal department classified and paid as laborers.'

"The United States Railroad Labor Board indicated that the question should be disposed of in conference between the parties, and that if they could not agree, a specific dispute, with supporting data and evidence to enable the Board to pass upon the merits thereof, should be submitted to the Board. The practice of the carrier was not changed up to the time the Labor Board went out of existence in May, 1926, yet no specific dispute was submitted to the Board, with supporting data and evidence to enable the Board to pass upon the merits thereof, and now more than eleven years later the suggestion of the Labor Board has not been carried out.

"The employes had the opportunity at any time between the effective date of the National Agreement, effective February 1, 1920, and the negotiations of rules under Labor Board Decision No. 119 resulting in the agreement effective February 16, 1922; between the effective date of the latter agreement and Decision No. 1538 of the Labor Board effective February 1, 1923, under which latter decision only the rules governing payment for Sunday and holiday work and for overtime were submitted to the Labor Board; between June 5, 1924, the date of Labor Board Decision No. 2493 and the date of this claim, which was first presented to this Company on February 23, 1936, during all of which time the same rule; viz., Section 5, Article I, of the current schedule, and the same practice thereunder had been in effect, to confer and endeavor to agree with the carrier on a line of demarcation between a laborer and a helper, yet all this time passed, without any attempt being made to confer with the representatives of the carrier in an endeavor to show that the established and recognized practice should be changed, at least to a certain extent, to comport with the desires of the employes.

"In conclusion, the carrier contends that the issue raised in this submission is one which can only be determined by conference between the parties, and in the event no agreement can be reached in conference the matter is one which should be submitted to arbitration under the Railway Labor Act. It is a negotiable question purely and simply."

An agreement bearing date of February 1, 1929, is in effect between the parties.

OPINION OF BOARD: The issues involved in this case are fundamental, and go to the very heart of agreements governing wage rates and working

a>s

conditions. The parties have testified that the rules of the agreement here at issue were negotiated through the processes of collective bargaining.

The employes contend that the classifications therein (Sections 1, 2, 3, 4, and 5 of Article 1) apply to Signal Department employes "performing the work generally recognized as signal work," and that a reasonable definition of the work to be done by each class is set forth and that the classifications cover and apply to all employes of the craft or class known as Signal Employes.

There is no classification of "Laborer" in the agreement, no wage rate for such a class, nor is there work of the Signal Department stated that may be performed by employes classified as laborers.

The Carrier contends that the agreement permits the employment of laborers in the Signal Department of its Lines, since no definite prohibition of their employment is set forth therein; that the work performed by the employes involved in this dispute is generally recognized as laborers' work. Also, that long continued practice should be recognized as compelling the employes to seek a modification of the agreement through negotiations if they desire that employment of laborers to perform signal work shall be discontinued.

On the other hand, the employes vigorously deny that there has been any such long continued practice, and, on the contrary, assert that it was stopped when protested in 1922, again in 1930 when it was renewed for a short period, and again immediately in 1935 by the case involved in Award 88. It was, of course, within the Carrier's ability to produce definite evidence of the practice from payrolls or other records in their possession. However, in the view the Board takes of the matter, the practice would be of no moment.

It is asserted, on behalf of the management, that Railroad Labor Board Decision 2493 is controlling. This decision, however, decides practically nothing. It merely holds that the Board recognizes that there is certain service justifying the classification and rating of "Laborer," but this is not an interpretation of the agreement. On the contrary, it would appear that if there was to be any such classification, it would necessarily require negotiation of a rating of it. It should be borne in mind that that Board had authority not only to interpret, but to change agreements.

On behalf of the Carrier, vigorous exception was taken to the consideration of claim No. 2 upon the contention that it had not gone through the usual channels of conference between the Organization and the management. It is difficult to understand such a contention when it is quite obvious that the question had been actively debated between the parties each time the practice was attempted, and was understood by both parties to be involved in Docket SG-87, Award 88, although the decision in that case was placed on narrower grounds. There is no set form of presentation in handling the matters, but it would be ridiculous to say that the subject had not been thoroughly debated by the parties. That there may have been no more formal denial of the claim by the carrier than its action in instituting the new attempt here involved following the Rhea decision, cannot be understood to be less than a direct denial of the claim.

The point apparently involved in the objection is an apprehension expressed on behalf of the Carrier that the allowance of this claim would have most far-reaching effects, disturbing long-settled practice, crossing departmental lines. It is claimed to be apprehended that the allowance of this claim would involve an insistence on the part of the Signalmen of the right to do even such work connected with signal affairs as the Stores Department, Mechanical Department, Maintenance of Way and Construction Departments now do and always have done. The employes concede they are making no such claims. It is welll recognized that these other departments do, and always have done work connected with signal work. There is no jurisdictional

319

dispute concerning the lines of demarcation in this respect. All that is here claimed for the Signalmen is that work done in its department, generally recognized as signal work, is subject to its agreement.

The position of the Carrier is that is can, as it did here, subdivide the work now performed by helpers, push what it regards as the higher class of that work up onto the higher cassifications of the agreement, and take the remainder, which it would classify as laborer work, without he agreement. By the same process of reasoning, it could take work now being done by signalmen and employ men under the classification "Electricians " "Machinists," or what not, at lower rates than those applicable to signalmen, and insist that in the absence of any written prohibition in the agreement such employes were not subject thereto, and that the Carrier was consequently within its rights. The mere statement of the proposition defeats it. If such were the case, the agreement would amount to nothing at all.

If, as the Labor Board thought, there is room for a classification "Laborers," it is a subject upon which the Carrier would be required to seek negotiation. However, from an examination of the Labor Board file, it appears that what seemed to be in controversy there was the utilization of Maintenance of Way labor for some assistance to signal gangs. This practice still subsists, and is not in controversy here.

Numerous awards by this Division and by other Divisions of the Board have held that work covered by an agreement cannot be performed by employes not covered by the same agreement, and that employes embraced in an agreement shall be returned to service in the order of their seniority rights to perform such work as is available, to the exclusion of junior or new employes. Consequently, in the absence of any express agreement to the contrary, it must continue to be held that all employment of the class covered by an agreement must be deemed to be embraced therein.

The Carrier violated the agreement by its failure to recall to service the senior furloughed employes for performance of the signal work in question. The Carrier also violated the agreement by employing laborers to perform signal work.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the carrier and the employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the Carrier violated the agreement by its failure to recall to service the senior furloughed employes for performance of the signal work in question. The Carrier also violated the agreement by employing laborers to perform signal work.

AWARD