STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: In 1953, the Carrier constructed a loading platform shed, 20' x 146.6' located within the right-of-way lines, adjacent to the Universal Carloading Company at Commerce Street in Houston, Texas.
The work of constructing the foundations for the aforementioned loading platform shed, applying floor decking, and other work incidental thereto, was assigned to and performed by the Carrier's Bridge and Building forces.
On January 29, 30, and 31, 1953 and on February 1 and 2, 1953, the work of assembling the prefabricated steel framework and applying the roofing thereto was assigned to and performed by a contractor whose employes hold no seniority rights under this Agreement. Two hundred and eight man hours were consumed by the contractor's forces in the performance of the above referred to work.
By letter Agreement, dated April 25 1952 construction work within the right-of-way lines is specifically reserved to the Carrier's Maintenance of Way forces and prohibits the Carrier from any deviation therefrom without first handling with the Brotherhood's General Chairman.
The Carrier assigned the aforementioned work to a contractor without first handling with or obtaining the approval of the General Chairman.
The claim has been handled on the property in the usual and customary manner without effecting a mutually satisfactory adjustment.
"HOUSTON BELT & TERMINAL RAILWAY COMPANY
Union Station Building
Houston, Texas
April 25, 1952
ered by the Agreement except the assembly and installation of prefabricated steel work for the roof and the application of asbestos roofing sheets. This work was "contracted out" by the Respondents and forms the basis of the Organization's complaint.
The Organization asserts that the Scope rule while covering this type of work and reserving the same to those covered by the Agreement, the parties here have, by virtue of the above quoted Letter of Agreement, specifically agreed that all construction work belongs to the Maintenance of Way forces, particularly where as here, such work was within the right-of-way line. It was pointed out that any deviation of this right is possible only when handled with the General Chairman or when forces are not available to perform such work when required, was not here accomplished. It was further pointed out that Claimants were both available and qualified to perform the work in question.
The Respondent countered that the Scope Rule of the effective Agreement could not be properly interpreted as granting to Maintenance of Way forces the exclusive right to perform the construction work that is at issue here. It was further asserted that the Letter of Agreement merely reserved to the employes construction pertaining to track work, and was not intended to cover the installation or erection of steel work or asbestos sheet roofing. It was further averred that the Claimants here were not qualified either by past knowledge or experience to perform the duties in question, and lastly, if such work had been assigned them as here requested they (Respondent) would have been subjected to additional and unnecessary labor costs.
This dispute concerns the propriety of "contracting out" certain construction and the question of whether or not the performance of the work in question namely the installation of steel girders and sheet asbestos roofing, inures to tire employes covered by the effective Agreement. This basic question has been before this Board on a considerable number of occasions, with decisions both affirming and denying requests that such work be found to be Maintenance of Way work. While certain broad principles have been enunciated the overall sense of these awards indicates the intention of this Board to apply these broad principles to the then existent facts of record. The Board, in finding that a Scope rule, similar to, if not identical with the rule here, was ambiguous stated in Award 7216:
We here reaffirm our adherence to both the premise and reasoning expressed in the above award (7216) and those other awards preceding it.
If we were to apply the above reasoning to the present facts we would of necessity conclude that the erection or installation of the steel work and sheet asbestos roofing in question was not the type of work which had been usually and traditionally performed by Maintenance of Way employees. But here we have a mutually executed Letter of Agreement which the Organization insists placed construction work under the Maintenance of Way Agreement, thereby guaranteeing its (the work) performance to and by employes covered by such agreement to the exclusion of all others. 7712-13 ,'720
Here again we are confronted with an ambiguous instrument. That this is true is evidenced by the parties' failure to agree on its proper meaning and application. If we adopt the Respondents' reasoning the above Letter of Agreement we would find that only track construction work within the right-of-way line was covered. If we adopt the Organization's reasoning we would conclude and find that all construction of any kind or character, without exception, had been given to the Maintenance of Way forces.
It is fundamental that all portions of an instrument must be considered and the relation of all provisions, each to the other, be examined to determine the intent of the parties. The first paragraph of the Letter concerns the disposition and payment of a claim for contracting certain work that was obviously and clearly track work. The second paragraph of the Letter, contrary to the Organization's contention pertains and alludes to the type of work that was the subject of the controversy. If this were not true there would be no reason for its inclusion in the Agreement. If a broader application had been intended the parties could and would have so noted. That the phrase
all construction and maintenance-cannot be interpreted as being "all inclusive" can be best demonstrated by the illustration that:
We think not. A rule of reasonableness must be applied to determine the parties intent.
We think that this conclusion is further buttressed by the past interpretation and application of the Letter of Agreement by both parties, when steel trusses covered by galvanized iron were utilized by the Carrier to "roof in" an extension to one of its facilities, with such work being done by other than Maintenance of Way forces.
This work was done subsequent to the execution of the aforementioned Letter of Agreement. The Organization registered no protest. There are no valid grounds for protest here.
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