Bridge watchmen are not regularly assigned and are used only when necessary under similar circumstances for short periods and their rate of pay is less than that of a B&B Carpenter. Section Laborers have been used on most occasions to act as bridge watchmen, when necessary, in connection with bridges undergoing major repairs. On some occasions an employe has been hired to fill a temporary position of bridge watchman.

The Carrier again asserts there is no schedule rule, custom or practice which would in any way support the claim which the Employes have presented, however, if the Employes' contention is correct-and we do not concede it is-then attention is directed to the principle found in many of the Third Division Awards to the effect that only the straight time rate is allowable.

It is a well-known rule of the common law applicable to relationship between an employer and his employes and their union that an employer may operate his establishment as he deems advisable except for such limitations as are imposed by statute or are agreed upon as a part of a collective bargaining agreement. Thus, the rights, privileges and prerogatives of an employer under the common law are reserved to him except as limited by law or surrendered in the collective bargaining agreement. The law does not require and the carrier did not surrender in the collective agreement its right, privilege and prerogative to assign watchmen as it sees fit without regard to seniority rights or classification of employes so used, in fact Rule 2-(e), which we have cited, specifically outlines the right of the carrier to fill positions of bridge watchmen as it did in this case.

The claim of B&B Carpenter Cassidy is not supported by schedule rule, agreement or interpretation, is without merit, and for these reasons is not proper and should be denied.

All data contained herein in support of the Carrier's position has been presented to the Employes.

OPINION OF BOARD: This case presents the question whether a Bridge and Building Sub-department employe should have been used, instead of a Track Department Sub-department employe, to watch a bridge at night while it was undergoing reconstruction.

The facts as stated in the Joint Submission are not in dispute.

Rule 4 (Departmental Limits) provides:

"Except as otherwise provided, the seniority rights of employes are confined to the sub-department in which employed."

Rule 4 goes on to enumerate the positions comprised within the various Sub-departments, but neither Watchmen nor Bridge Watchmen .are mentioned.

Rule 2-(e) (Seniority Datum) provides:

"The general rule of promotion and seniority will not apply to positions of track, bridge and highway crossing watchmen and signalmen at railway (non-interlocked) crossings, but when practicable, such positions will be filled by incapacitated employes from any department, and preference in filling and retaining these positions will be determined by the degree to which incapacitated for other work, seniority in the service of the Railroad and ability to perform the work."

Rule 46-(d) (Classification) provides:

"An employe assigned to constructing, repairing, maintaining or dismantling bridges, buildings or other structures . . . or who is

assigned to perform miscellaneous mechanic's work of this nature, will be designated as a bridge and building carpenter and/or mechanic."

FIRST: Rule 4 expressly confines the seniority rights of employes to the Sub-department in which employed and does not list watchmen among the positions comprised within the Bridge and Building Sub-department. Moreover, in describing the work of the Bridge and Building Carpenter, Rule 46-() does not lift watchmen's work and inferentially excludes it by characterizing the Bridge and Building Carpenter's work as "mechanic's work." Finally, Rule 2-(e) deals specifically with watchmen, including bridge watchmen.

Thus, the work in question is governed by express provisions in the rules. The work was watchman's work (see Award 5209). But it does not appear that a watchman was available, either incapacitated or able-bodied; and no claim is made on behalf of watchmen.

SECOND. The work in question being watchman's work, employes in the Bridge and Building Sub-department have no better claim o it than the employes in the Track Sub-department.

However, it is urged by the Brotherhood that the sole purpose of the work was maintenance of the bridge in furtherance of the undoubted Bridge and Building project of reconstruction. Awards are cited to the effect that, when the work is of an unskilled nature common to two or more crafts and not the exclusive work of any craft, the purpose for which it is performed determines how it should be classified (see Awards 3638, 4077, 4553, 4795; 3206, 4637, 4776 and 53041.

But the work in question here was not common to the Track and Bridge and Building Sub-departments. It was the exclusive work of watchmen. On the completion of each day's work it was the responsibility of the Bridge and Building forces to leave the bridge in safe condition for the passage of trains. We are unable to find that the watchman's duties were an integral part of the repair, maintenance or reconstruction of the bridge.

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 Agreement was not violated.

AWARD

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division