NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood:
1. That the Carrier violated Agreement in effect by assigning the moving of a platform from Mission to Abney to an outside contractor;
2. That each member of the B&B gang, D. Fisher, Foreman, and mechanics, D. R. Perry, L. R. Ryan, J. B. Lamp, J. D. Amason, A. L. Alexander, and J. W. Morris shall be paid 8 hours on July 4, 1943, and 10 hours on July 5, 1943, at overtime rate.
EMPLOYES' STATEMENT OF FACTS: On July 4 and 5, 1943, a wood platform was moved from Mission to Abney, Texas. The moving of this platform was let to an outside contractor and the work involved in moving of the platform was performed by men hired and paid by such contractor. On the dates when this platform was moved 'by the contractor, the claimants, bridge and building employes holding seniority rights in the Bridge and Building, Department on the territory over which this platform was moved, were laid off and not permitted to work.
The agreement in effect between the Carrier and the Brotherhood is by reference made a part of this Statement of Facts.
POSITION OF EMPLOYES: Rule 1 Scope, of agreement in effect between the Missouri Pacific Lines and the Brotherhood of Maintenance of Way Employes, reads:
When consideration is given to the above facts it is clearly evident that there is no basis in equity nor under the agreement between the Carrier and its Maintenance of Way Employes for the contention that the seven claimants in this case are entitled to eight hours at the time and one-half rate on Sunday, July 4, 1943 and for ten hours at the time and one-half rate on Monday July 6 1943, therefore, the contention of the Employes should be dismissed and the claim, accordingly, denied.
OPINION OF BOARD: The question involved here is whether the Carrier violated the Agreement by assigning the moving of a platform from Mission to Abney, Texas, to an outside contractor. Claim is made for two days on which employes were not working, namely, July 4, 1943, a Sunday, and July 6, 1943, a holiday.
It is conceded in behalf of the Carrier in this case that work of the character here involved is covered by the Agreement between the parties and under ordinary circumstances would be performed by the Carrier's B&B forces. But, Carrier asserts, this was an extraordinary situation where the facility was required to be moved within a limited time and Carrier's forces were engaged on programmed work, working one hour overtime, and Carrier did not have enough men to keep abreast of its current maintenance work. That Carrier has been confronted with difficulties in securing the necessary labor for work to be performed there can be no doubt. This argument in behalf of Carrier would be persuasive were it not for the fact that the Agreement contains no exception to Carrier's obligation to give the work in question to those coming within its scope. See Awards 2812, 2819. Compare Awards 2701, 1463.
In the awards cited in behalf of Carrier, such as 1042, 1453 and 1610, the outside work was done while employes were regularly employed and they lost no time by reason thereof, thus distinguishing these cases from the case at bar where employes were not working on the two days for which claim is made.
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