All claimants in the instant claim worked regularly and were fully employed during period involved, with exception of claimant Harvey Soderlund who was out of service due to personal illness from April 3, 1948 to April 26, 1948 during which period he would not be eligible for a claim.

The basis on which claim for 266 hours at pro rata rate is made was not made known to the Carrier and there appears to be no way in which such a figure can be arrived at if based on hours actually worked by Contractor Carpenters. No claim was made for a Foreman or carpenter helpers to offset time worked by Contractor employes.

The Carrier submits that claim must be denied, primarily for the following reasons:

1. Work involved has not heretofore been recognized as belonging exclusively to employes of the Maintenance of Way and Structures Department.

2. Most of the work was new construction, and required skills in the handling of reinforcing and structural steel not possessed by claimants and such skills are not ordinarily possessed by employes in this department.

8. Claimants were regularly and fully employed in accordance with schedule requirements during the period involved in claims, except as heretofore noted.

(Exhibit not reproduced)

OPINION OF BOARD: The Carrier employed the services of a contractor to construct a number of large cement slabs (which were subsequently transported and used by Maintenance of Way crews in replacing timbers in a bridge), and in constructing a retaining wall, repairing parapet walls and replacing a portion of abutment at bridge sites. The Employes claim this work was within the terms of their Agreement (see Article I set forth in their submission) while the Carrier contends the claimants lacked the skill required in using reinforcing steel used in the cement deck slabs, and that it has been the practice to contract such work as could not be taken care of by Maintenance of Way and Structure forces involving new construction, heavy maintenance work as well as work requiring skills not covered by the Agreement. All of the claimants were employed by the Carrier on other projects during the time the contractor performed the work.

The general rule applicable was set forth in the Opinion of the Board, Referee Swacker assisting, in Award 757. The Board said in that Award:

"It is well settled by many decisions of this and the First Division of this Board and predecessor Boards, that as an abstract principle a carrier may not let out to others the performance of work of a type embraced within one of its collective agreements with its employes. (Citing Awards.) This conclusion is reached not because

of anything stated in the schedule but as a basic legal principle that

the contract with the employes covers all the work of the kind involved, except such as may be specifically excepted; ordinarily such exception appears in the Scope Rule, but the decisions likewise recognized that there may be other exceptions, very definite proof of which, however, is necessary to establish their status as a limitation upon the agreement. Mere practice alone is not sufficient, for as often held, repeated violations of a contract do not modify it."

By implication, the Carrier admits the work described as the basis

of the claim, is within the Scope of the Maintenance of Way Agreement, but seeks to avoid the operation of the rule because of (a) lack of sufficiently skilled employes, and (b) acquiescence on the part of the employes in the practice of contracting work when crews were not available or the work was new or beyond their skill to perform it. The burden is on the Carrier to demonstrate one or more of these assertions. (Opinion of the Board in Award 757, supra; and also see Awards 4701 and 4671.)

The work described here was not construction of a "new" structure as is commonly understood as "new" work. Replacing old timber by new cement slabs, or enlarging an existing abutment or parapet, may not be classified as "new" work. We believe the work was more nearly like repairing and remodeling, strengthening the Carrier's right-of-way, and is the kind of work contemplated by the parties to be performed by Maintenance of Way crews.

The Carrier makes the assertion, and it is denied by the claimant, that their employes lacked skill to perform the work. The submission contains no particulars as to what respect the employes were incapable of using reinforcing steel in the construction of cement slabs. There is nothing to show in what degree or particular its crews lacked skill to use reinforcing steel. But attention should be called to Award 4671 where the question of skill was the decisive factor; and there the Board, with the assistance of Referee Stone, pointed out that before the claim of lack of skill on the part of em. ployes could be made available to it in justification of contracting the work, it was incumbent on the Carrier to follow the provisions of the Agreement and attempt to recruit adequate help and to confer with the Organization.

The Carrier also asserts that it has been the practice for it to contract work "particularly new construction, as well as maintenance work, when regular Maintenance of Way forces have not been available." Practice does not alter the terms of an Agreement so as to establish exceptions to work embraced in the Scope Rule (see Awards 757 and 4701). It was the duty of the Carrier to comply with the terms of the Agreement and bulletin the work. Had the Carrier followed such procedure without success, the situation would have been altered.

Nor does the non-availability of employes justify the Carrier in ignoring Rule 22 of the Agreement. This contention was made by the Carrier in Docket MW-4899 (Award 4896). There the Board, with the assistance of Referee Shake, used the following language:

"Neither are we impressed by the proposition that the Carrier's available B&B employes were engaged in other essential tasks, for which they were compensated at straight time. As was pointed out in Award 4158, even though these employes were so engaged, they have just cause for complaint, because of the possibility of being deprived of promotion and other pertinent factors there mentioned."

It follows, therefore, that the Carrier violated the Agreement; and the claims are valid for the named members of the B&B Gang No. 6, who were available and working at the time the work was performed by the crew of

That the Carrier violated the Agreement.

AWARD