Following this is a list of the employes that the agreement covers. It will be noticed that all of the employes named are maintenance employes. They are not employes engaged in prevention or protection of the property against fires as are the employes in the Special Agents Department.

The Interstate Commerce Commission classification of the Maintenance of Way and Structures Worker Group provides that:

"This Group includes positions in which the preponderant duties of incumbents are to perform or supervise the performance of unskilled or semi-skilled manual labor in connection with the construction and maintenance of roadway, tracks, bridges, buildings, fences, signals, telegraph and telephone lines, water service facilities; and similar work."

The employes in the Special Agents Department did not perform, nor were they expected to perform, any of the duties of a Maintenance of Way and Structures Department worker. They did not perform or supervise any manual labor in connection with the construction or maintenance of the facilities. They only performed duties in connection with prevention of fires and protection of the property.

The Employes have offered no evidence that the employes in the Special Agents Department during the period of the claim performed, or were expected to perform, any duties in connection with maintenance or construction of roadway, tracks, bridges, buildings, etc, Neither have the Employes offered any proof that Maintenance of Way and Structures Department employes have the exclusive right to police the property to prevent fires.

For the reasons herein stated, Carrier respectfully requests that the claim be denied.

This claim has been handled in accordance with the provisions of the Railway Labor Act, as amended.

(Exhibits not reproduced.)

OPINION OF BOARD: Approximately fifty employes were added to the Special Agent Department (Police Department) by Carrier during a period of severe drought. The period of employment ran from October 30 to November 9, 1952, when a general rainfall alleviated the condition and the services complained of were terminated. These men were used to patrol not only the right of way but to caution trespassers, as well as hunters on adjacent lands. Their duty was primarily to report fires and not to fight them, giving particular protection to some 241 bridges, many of wooden construction. The claims concern the Southern Division. No agreement exists between employes of the Special Agent Department and this Carrier on this Division. The additional forces were hired at 75 cents per hour which is considerably below the laborers' rate under the Maintenance of Way Agreement.

The action complained of by the Employes was not general throughout Carrier's operations. In some districts, Maintenance of Way employes performed the work exclusively. October 29, 1952, instructions were issued to various section foremen to arrange for patrol and watching service to be performed around-the-clock but soon after, these forces were replaced on night and rest day periods by these new employes.

The Employes contend that the work of patrolling and watching tracks, right of way, bridges, etc., has been traditionally and customarily assigned to and performed by the Carrier's track forces and was so at the time of the negotiation ar.d execution of the instant Agreement. Further, that track forces are generally required to burn right of way each fall, to cut flre guards and all other similar work in the field of fire protection on Carrier's right of way as a practice of long standing. These allegations are supported by letter

Exhibits. They contend that the disputed work assignments here involved are nothing more than individual contracts with a number of individuals for performance of work inherent to a section laborer's position. Further, that the work in question did not entail the exercise of police authority and the occupants of the positions were not deputized.

The Carrier asserts that it is the work of all classes of employes to be on the alert for fires or for any other conditions that might endanger the Company's property. It further alleges that the essential service of the Special Agents' Department is to protect Carrier's property. It points to the fact that it was employes of this Department who were used to protect bridges against saboteurs during World War II. Carrier contends that the Maintenance of Way employes do not have the exclusive right to perform subject duties and that Claimants were fully employed during the period.

While concerning ice and water and not fire, and tracks rather than bridges, Award 1366, decided by this Division without referee, is of some pertinency to the issue here presented. There the question presented was whether the services required constituted watchmen's services, as designated by the Carrier, or services as track laborers, as contended by the Employes. The Division found that the work was that of track laborers.

Practice, which survived rule revision upon the lines of this Carrier, would seem o have vested the work in question within the general scope of the Maintenance of Way Agreement rather than within the scope of the Special Agents' Department. That is the narrow question now before us. This is hot to say that the work is exclusively that of the claiming Organization as the practice itself recognizes that signal, train, engine and other forces perform the work of safeguarding Company property, and particularly the right of way, as incidental to their regular assignments. But it must be so confined and not become their sole function for otherwise infringement upon the Scope Rule, as interpreted by a strong showing of practice, results. While the need and means adopted to solve it were novel, there Ls a close relationship between the work required and that usually performed by Maintenance of Way forces.

The situation before us is dissimilar to that of guarding bridges against sabotage during World War II. There the function performed by the Special Agents' Division was essentially that of policing rather than patrolling, with authority to arrest, work clearly beyond the ordinary duties of section forces either by custom or local practice.

While the docket reflects that the primary task required of the additional Special Agents' force was to patrol the right of way to discover and report fires, there is some evidence adduced by the Carrier to indicate that they also called upon adjoining property owners to solicit their interest and aid in guarding against fires. To that extent, and it appears minor in respect to the whole, the work could be properly that of a special agent rather than that of a section laborer. We mention this merely to avoid misunderstanding if the need should reoccur.

It avails the Carrier nothing, as we said in Award 5075, that Claimants were employed during the period in question. Rule 7 (k) of the effective Agreement provides:

See also Award 6063. Because the work is outside ail employe's regular hours of assignment does not grant the Carrier the right to assign the work to persons not covered by the Agreement. Award 4933.

We find that Maintenance of Way employes were improperly denied opportunity for work and overtime by the actions of this Carrier. The claims, while properly asserted by identifiable Claimants, however, are sustainable only at the pro rata rate.

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 violated in accordance with Opinion.

AWARD