The Brotherhood of Maintenance of Way Employes have negotiated agreements with the Carrier ^ffective January 15, 1936 and January 1, 1944, corrected October 1, 1951. The Brotherhood has known of the long past practice of contracting work in connection with pier repairs as set out in Carrier's Exhibit C-3. However, when these agreements were negotiated, existing practices were not abrogated or changed by their terms and Carrier maintains that such practices are enforceable to the same extent as the provisions of the contract itself.

Carrier has shown that work on this property in connection with repairs and changes to Piers and Marine facilities has never been considered the exclusive duties of Carrier's employes holding seniority as wharfbuilders on the Port Richmond Terminal seniority roster, and such work has on occasion been performed by contractors' forces. Carrier further submits that this practice was not abrogated by agreements subsequently negotiated. Since Carrier's forces were fully employed at the time contractor's forces were working on Piers "G" and "H" as shown in Carrier's Exhibit C-2, the claim as submitted is for penalty only and Carrier submits that it is a well established principle that penalties cannot be awarded under a contract unless specifically provided for therein.

Under the facts and evidence, Carrier submits that the work performed by contract at Piers "G" and "H" has not in the past been reserved for or performed exclusively by employes holding seniority as wharfbuilders on the Port Richmond seniority roster. Furthermore, Carrier's forces lost no time or earnings by reason thereof and were not aversely affected thereby. For the reasons set forth hereinbefore, the Carrier maintains that the claim as here presented is not supported by the rules of the effective agreement, understandings or past practice, is without merit and requests the Board to so find and deny the claim.

This claim has been discussed in conference and handled by correspondence with representatives of the Brotherhood of Maintenance of Way Employes.

(Exhibits not reproduced.)

OPINION OF BOARD: At Philadelphia, Pa., the Carrier maintains a large tidewater marine terminal known as Port Richmond. During the fall of 1953 the Carrier undertook an extensive program of repair and rehabilitation of the various piers and marine facilities there, which included piling work, replacing and renewing decking and sheathing, dredging, excavating and concrete work, replacing and renewing bulkheads, panting and modernization of certain facilities at seven piers and one float slip. The Carrier states the entire program represented an expenditure of nearly one million dollars. All of the Carrier's employes holding seniority as wharfbuilders on the Port Richmond seniority roster were engaged in this work. The subject dispute arises because Carrier contracted to an outside firm a portion of this work. The claim concerns the work contracted out at Piers "G" and "H" which consisted of the removal and replacing of piling, and related work. The contractor used from four to eight employes daily in the performance of this work from September 28, 1953 to about December 24, 1953.

The Organization contends this is work which is embraced within the scope of the effective Agreement, that said work should have been performed by employes holding seniority as wharfbuilders on the Port Richmond seniority roster, that wharfbuilders have performed similar work in the past, and that the Carrier therefore violated the Agreement.

The Carrier responds that the claim should be dismissed on the ground that it is vague and indefinite since it does not identify the individuals for whom the claim is made, or the specific dates involved. On the merits, the Carrier contends that due to the magnitude of the entire repair and rehabilitation program its own available forces could not complete all of the work involved without deferring or delaying much of the necessary work; that the

Carrier's own forces in the wharfbuilder classification were fully employed during the period in question; that it was not possible to secure additional help with the requisite skill and experience for the work in dispute; and that special equipment was needed to properly progress such work, particularly a steam derrick scow and a pile driver. Finally, the Carrier asserts that while its forces have performed work similar to that in dispute, such work also has been contracted out on numerous occasions; and that Wharfbuilders at Port Richmond do not have exclusive jurisdiction over such work.

The general rule followed by this Board is that work embraced within the scope of an agreement cannot be assigned to employes not subject to its terms. Exceptions to this rule are permitted under certain specified conditions which often have been enumerated in prior awards. The Carrier pleads some of these exceptions in the present instance.

The effective Agreement does not specify the class or character of work to be done by the employes on the wharfbuilder seniority roster. Nevertheless the very title "Wharfbuilder" implies the construction and maintenance of piers. Where there is any ambiguity in the terms of an agreement in this respect, the rule is that the work reserved to a class of employes is that which customarily and traditionally they have performed.

The evidence indicates that the wharfbuilders who are part of the Carrier's Maintenance of Way forces, have traditionally performed work of the character here involved. The Carrier's contention that they do not have exclusive jurisdiction over such work is based on the fact that on rather frequent occasions in the past some of this work has been performed by outside contractors. The Organization contends that in all such instances it either agreed to such action or filed a claim. The Carrier responds that on only a few occasions were claims filed and that in the ma,l ority of such instances the work was sub-contracted without protest by the Employes and without prior discussion or negotiation.

In the light of all the evidence, we conclude that the disputed work is embraced within the scope of the Agreement, that the Organization has not concurred in removing same from the Agreement's jurisdiction, and that the Carrier's employes on the wharfbuilder roster were entitled to perform this work unless one or more of the permissible exceptions can be established. If we were to hold that past instances of contracting out pier repair and rehabilitation work meant that wharfbuilders in the Carrier's employ no longer had exclusive jurisdiction in this respect, the result would be that Management could contract out all such work. In that event the seniority status of Wharfbuilders would be virtually meaningless, for there would be no work for them to perform.

Since the work in question is embraced within the scope of the Agreement, the Carrier has the burden of proof that the prevailing circumstances justified its action in contracting out this work. Awards 4920, 5470, 6109. Its contentions in this respect boil down to considerations of availability of qualified manpower and of the proper equipment.

The fact that the Carrier's forces were fully employed at the time is not in itself a valid defense. While certain of the wharfbuilders worked some overtime during the period in question, there was available additional overtime which they could have been assigned to work. Although the Carrier asserts it was not possible to augment its forces with qualified individuals, no proof is offered that it made an effort to do so without success.

This brings us to the question of equipment. A pile driver was needed for the disputed work. The Carrier possessed a pile driver which was in poor condition and inoperative. It states it would have been uneconomical to restore the unit to operating condition. The Organization points out the Carrier could have rented a pile driver. Management does not deny this but states the amount of pile driving work on this property does not warrant the rental of such equipment. The other cited piece of equipment which the Car-

rier lacked was a steam derrick scow. The Carrier possesses a hand derrick scow which is used by its own forces for the purpose of handling heavy timber. The Carrier states the steam powered crane on the scow owned by the contractor also can be and was used as a pile driver.

On the record of this case, we do not think the Carrier has established that it exercised all reasonable effort either to augment its force with personnel qualified to perform the work in question or to utilize its then existing force to the fullest extent. Nor do we find the Carrier's contention regarding lack of equipment to be persuasive under the circumstances that prevailed. In sum, we are of the opinion and find that the Carrier has not sustained the burden of proof in justifying the contracting out of work which is embraced within the scope of the Agreement.

We are further of the opinion that Part (2) of the claim is not so vague or indefinite as warrant dismissal.

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 Carrier violated the Agreement.

AWARD