laborers were performing concrete work in laying these pre-fabricated slabs on the ties. Section laborers have in the past laid pre-fabricated steel and other types of manufactured material on street and highway crossings without claims being made for a higher rate of pay. They perform right of way fence work and it might as well be contended that if the Carrier purchased precast fence posts made of concrete instead of wooden posts that the work of inserting fence posts in the ground became B. & B. work because the fence posts were manufactured of concrete. It is absurd to say that the mere handling of an article made of concrete is concrete work.

We have shown that the work performed in the instant case was jointly performed by the section laborers under the supervision of the section foreman and the B. & B. gang under the supervision of the B. & B. Foreman, the section laborers performing their part of the work in laying the slabs in place on the ties and driving certain track spikes, and the B. & B. employes, cutting and fitting the flange-way blocks, boring holes and applying lag screws to hold slabs outside of the rail on ens of ties which is work the B. & B. employes are fitted to do and have the tools to perform.

Section Foremen report to the Roadmaster and as shown in Group 6, page 11 of the current agreement with the employes, they have charge of the construction or maintenance of railroad track of any character and the rules of this Carrier provide that roadmasters shall cooperate with Bridge and Building men in connection with all work that may be done by them which affects the maintenance of track. The installation of the slabs, cutting and fitting flange-way blocks, etc. did affect the maintenance of track and the very nature of the work called for joint participation in the performance of that work by the Section Foreman and his gang of section men and the B. & B. Foreman and his gang, each class of employes performing their respective part of the work as herein shown.

The same kind of crossing work was performed jointly by B. & B. employes and section laborers at the other crossings on the Chicago Division shown in Carrier's statement of facts, i. e., Oak Park Avenue, Central Avenue and 139th Street and our records show that this type of work was similarly performed in 1931 at 119th Street crossing and in 1937 at 95th, 103rd and 111th Street crossings without any claim or contention on part of the employes that section laborers were performing concrete work.

The Carrier holds that the instant claim is not sustained by any agreement rules and should be denied by your Board.

OPINION OF BOARD: The facts are not in dispute. They are stated succinctly in the Committee's exparte submission.

The question presented is whether the setting of concrete slabs, manufactured by and purchased of an outsider, by trackmen, constituted a violation of Rule 1, Scope, which provides in part:

The employes contend that the laying of concrete slabs, even though purchased pre-cast, is bridge and building maintenance work and belongs exclusively to B. & B. mechanics and their helpers. The Carrier denies this contention.

In order to sustain the employes' contention, we would have to say that setting pre-cast concrete slabs between rails at a railroad highway crossing would come under the construction of walks or platforms, or both. We do not see how we can possibly define a railroad highway crossing as a walk or platform. Nothing can be found in the definition of walks or platforms that approximates the definition of a railroad highway crossing. True it is

that pedestrians may have to walk over a crossing to reach a railroad platform at a railroad station or a walk leading to the station, but that does not alter the situation.

It must be conceded that the laying of these pre-cast concrete slabs is not concrete work in the sense in which cement work must be understood. The work of laying the cement and making the slabs was performed by the manufacturer from whom they were purchased.

Now did laying of cement require skilled or unskilled work of an artisan or craftsman character, such as is possessed by carpenters, or necessitate use of carpenter's tools? There is nothing in the record to prove it did. The work was purely manual labor, requiring the slabs to be laid over a foundation and over the ties, between rails, in contact with each other, with setting of spikes against the end slabs to prevent shifting or movement. There is no evidence in the record that mechanics' tools were required.

It being impossible to say definitely that the work was the prerogative of the B. & B. Maintenance Organization, exclusively theirs as a matter of right, the claim must fail, even though we should find, as contended by the Committee, that similar work has been done in some instances by B. & B. maintenance men. We are not informed, nor can we find that similar work has always been done by B. & B. maintenance men, and that this was the first instance when a situation like the present one arose. In fact, it appears that work of this kind has been handled before as it was in this case. Disagreement as to how the work has been done in the past is admitted.

"From the foregoing, it is obvious that this Board is in no position to say with that degree of certainty which should back its awards, that the work here involved is the exclusive prerogative of either organization. It may be that it is competent for either to perform it, but there is quite insufficient basis to reach a conclusion that it might be done by one to the exclusion of the other." Award 616, Referee Swacker.

Rule 37, Composite Service, does not apply here, even though B. & B. mechanics and their helpers were doing the work of cutting and fitting in place of flangeway blocks (presumably of wood), and the boring of lag screw holes in ties, together with the setting of lag screws, as required, with the slabs placed outside of rails at the time the concrete slabs were being placed on the highway crossing..

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

AWARD