(1) The Agreement was violated when the work of erecting a right-of-way fence on the east side of the track between Mile Post 103 and Mile Post 105 was assigned to and performed by outside forces who hold no seniority under the effective Agreement;
(2) Bridge and Building Foreman J. O. Stapp and the following Bridge and Building employes: R. H. Stapp, J. H. Little, C. G. Edwards, W. R. Stafford, H. F. Studdard, C. L. Mills, H. A. Edwards, E. W. Richey, Roy Arthur, and H. J. Stapp, each be allowed pay at their respective straight-time rates of pay for an equal proportionate share of the total man hours consumed by the outside forces in performing the work referred to in part (1) of this claim;
time, including some overtime during the periods involved, except some of them were on vacation or laid off, as follows:
It is evident that the effective Maintenance of Way Agreements were not violated; that the Carrier has not negotiated away its right to enter into agreements with adjoining landowners whereby fences are erected and maintained on a joint basis, or solely by property owners; that the fences were erected In accordance with past practices under the effective Agreements here in evidence; that the work constituted new construction, as distinguished from maintenance or repair work; that none of the claimants were adversely affected in any manner whatsoever; that the claim has no merit and is not supported by any provision of the Agreements here in evidence; and that, in these circumstances, the Board should make a denial award
All relevant facts and arguments involved in the dispute have heretofore been made known to employe representatives.
OPINION OF BOARD: These claims arise by reason of Carrier's entering into agreements with two land owners whose properties adjoined the right of way each at a different location. The agreements provided that the Carrier was to furnish all the necessary fencing materials including woven wire fencing, barbed wire, line posts, stretcher posts, corner posts, gate posts, gate and concrete and the adjacent land owners were to erect the fences.
With respect to claim (1) the Carrier contends for the first time in its submission, received by the Board on March 18, 1955, that no fences were built between mile posts 103 and 105 because due to the death of the landowner the agreement providing for their erection was never carried out. There is no question that in handling this claim on the properties it was progressed on the basis of a fence erected "two miles north of Springville, Alabama" up to the highest authorized Carrier official. In his denial of the claim on June 21, 1953, he stated:
In view of the fact that Carrier's personnel officer stated that his investigation indicated the erection of the fences between Mile Posts 103 and 105 by
:emollo; SO psaa LMT 'T lsn2nV anlloaga juawaaa2V acll ;o E pus T salnU ;o uoilaod luautlaad aqy
-ellaaw am ;o uolleulwaalap s o; 2ulpaaawd ano luaeaad of aauaso am ;o laud am to a3lalsiw alqesnoxe Sllenba us woa; 2uiwwals aoaaa luaoouui us aq of sasadda leqm llwaad lou ll!m atA *(T) ul uoileuiuuaqap :o; an aao;aq auo 9744 se .ilaadoad am uo palp -ueq se uwISIO am aaplsuoo Ilim am assn siu; ;o saouu;swnoalo am aapull
'aIIIA2ujjdS ;o maou sallow z aoua; 0111 of 2uuaa;aa ul 'aalusp 4sHI uolsolux -qns SIT uI -aauollilad am ,Aq mao; las aunt ail; 6lalswixoadds Is uoilsanb
ul uolleool am Is aqua; Sluo aql aq of li mauyi llam aalaasD pus Alaadoad au; to passnosip 2uiaq sum aoua; qoicIm ;o aJnmV OJOM Sal lrad qloganiaoap of pa;dwalla aauoilrqad quill ao suaiwaad am ul pauuo;uisiw sum IT asql ao 'slq2la SIT of aolpn(aad .Aus moils louuso sauavo atLLL aaaq IT 2ulaapcsuoo ano of Isle; si uollumus2ao am ;o uoiwiwqns gill ul uopdlaosap SIT qsqn ploq
louuso aM Aqjadoid am uo passnosip auo Siuo acll sum 'uwsqeIV 'aillnftudS ;o qlaou sallux oml aoua; aql laql asala ST IT paooaa STLII woa,3 -aauasa ay; ;o qsql woa; Slaadoad s aaumopusl am 2uipinlp auil s to paloa:a sum ;I ajIIA
-2uudS ;o qlaou sallux g ;noqs ;uiod s woa; 2uiuul.Saq alcw T Inoqe ao; Hosa3 s,xauasZ) ;o apis 4saa aql to jllnq sum aoua; s Ism uollsanb ou sl aaaqL
,pasog acll o3 wrelo am 8ullaadda ui uocleool gill ;o uolldlaosap am paldaoos Xldw;s sallasd au; aaumo pusl juaas.rps ail
The employes maintain that it is and has been for 30 years the work of B & B forces to build all right-of-way fences on this property and that such work is a part of the usual and customary work of employes holding seniority in the B & B sub-department. That the Carrier by agreeing to permit the work to be performed by other than covered employes violated the Scope Rule. They call particular attention to the inclusion in Rule 3 (h) as set forth above which refers to "B-1 Foremen (including Fence Gang Foremen)".
The Carrier maintains that the Agreement was not violated; that state laws govern the erection of right-of-way fences; that work was performed according to past practices and that the work in question was new construction as distinguished from maintenance or repair work.
The past practice to which Carrier refers in its submission is set forth as follows:
With respect to Alabama law, while the railroad is liable for damages for livestock killed on its right of way under certain conditions, it is not required to build fences along its right of way unless requested by the Public Service Commission. The Carrier admits however that in the building of such fences it does derive a benefit by lessening the danger of its trains killing livestock.
The Carrier points out that work of the nature discussed here was being performed at the time of negotiation of the Agreement and that Rules 61, of the Foremen's Agreement 53 of the Laborers' Agreement were specifically designed to bring about a continuation of a practice not in conflict with the Agreement. With that statement we are in accord.
As a general principle this Board has held that, when as here, there is no so called classification of work rule the work that is reserved to the employes covered is that which is historically and customarily performed by that group.
In the instant case the employes maintain that they have met this test and the Carrier counters by submitting a list of some 82 fences constructed on a joint carrier-landowner basis. Significantly not one of these locations is on the trackage of the Alabama Great Southern. The exhibit submitted by the Carrier does not refute the petitioners showing that its B & B employes erected fences on the property of the carrier by whom they were employed. The Carrier maintains that practices obtaining on other railroads of a system control practices on each and every railroad of the system even if it had a history of different practices. In our opinion interpretation of the Agreement rules may be uniform but that practices on one railroad cannot be ascribed to the employes of another railroad.
We find that under the facts of this case B & B employes of the Alabama Great Southern established the fact that they were entitled to the work the Carrier permited other than covered employes to perform and a sustaining award is indicated.
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: