(1) The Carrier violated the Agreement on December 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 26, 27, 28 and 31, 1956 and on January 2, 3, 4, 7, 10, 11, 16, 17, 18, 21, and 22, 1957 when it assigned section laborers to perform water service helpers' work and failed and refused to compensate them at the water service helpers' rate for such service.
(3) The Carrier further violated the Agreement on January 18 and 21, 1957 when it assigned Water Service Mechanic William Lusch to operate Utility Tractor SPO-121 to backfill trenches, instead of using Utility Tractor Operator Jacob Michael.
(4) Utility Tractor Operator Jacob Michael now be allowed sixteen (16) hours' straight time pay because of the violation referred to in Part (3) of this claim.
The fallacy of their argument becomes obvious when it is observed that other departments have assigned utility tractor operator positions. Granted claimant J. Michael does hold seniority in the class of utility tractor operator in the track sub-department, such seniority in no way extends to a particular utility tractor, nor is carrier limited in any way in the utilization of such equipment in the way of transfer to other departments or loaning such equipment to other departments.
Carrier's records do not reveal that claimant Michael has ever operated the utility tractor used by water service mechanic on the dates of this claim. That particular piece of equipment is ordinarily used only in the summer months to pull a disc to cut down weeds.
The operation of utility tractor SPO-121 by Water Service Mechanic William Lusch, January 18 and 21, 1957, in no manner affected the seniority of utility tractor operators of the track sub-department for the reason that all employes of that class, including Claimant Michael, were working as utility tractor operators and unavailable for the service here under discussion. A water service sub-department employe was used only in the absence of any available, qualified employe of track sub-department. In those circumstances, Rule 4 of the current agreement dealing with seniority of employes in the several sub-departments is not involved in this case.
It is clear from a review of the facts in this docket that the project involved required the service of both water service department and track sub-department employes to accomplish the end result. However, the line of demarcation between the crafts of those departments was clear and was at all times observed; in short, the work was divisible and was properly divided between the crafts involved.
The claim in this docket is entirely lacking in merit or agreement support and carrier requests that it be denied.
All data herein submitted have been presented to the duly authorized representative of the employes and are made a part of the particular question in dispute.
OPINION OF BOARD: Claimants were used on claim dates to dig trenches for the installation of a sewer by Water Service forces. The record shows that the trenches were dug to such depth as to require shoring up the sides with lumber to prevent cave-ins, and that it was necessary to use a sump pump to keep water out of the trench while excavating and when sewer pipe was installed. The work of back filling trenches was performed by a Water Service employe using a utility tractor. 11618-14 520
Claims (3) and (4) are based on the fact that the Agreement's Wage Schedule places the position of "Utility Tractor Operator" under the Track Sub-Department, Group 2-Miscellaneous; that, therefore, Claimant's seniority rights were allegedly violated when he was not used to operate the tractor on the specified claim dates.
The Carrier's defense to these claims is bottomed on two premises: First, that the work involved was maintenance work which "traditionally has been the work of traekmen"; and, second, that the work of back filling the trenches was Water Service work properly assigned to a Water Service employe.
The Board finds, however, under the facts of this record that the entire project was designed solely for the purpose of installing water service facilities and, as such, all work done in connection therewith belonged to employes of the Water Service Department.
Consequently under the cited rule, Claims (1) and (2) are valid and will be sustained; Claims (3) and (4) are denied.
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
The majority holds that the work of digging a ditch under a series of tracks, removing and replacing ties, is not Section Laborers' work, but is Water Service work and payable at the latter rate since it was done for the purpose of installing sewer pipe.
This conclusion is erroneous since it ignores basic facts as well as principles. It ignores the fact that there is no evidence that track laborers dug ditches anywhere but under tracks, a fact which incidentally is admitted by the Organization in the record. It further ignores the established fact that these track laborers worked under the sole supervision of a track foreman and. were performing work recognized on this railroad to be track work and that. alone.
This award ignores the well established principle that where a general scope rule is involved, the Petitioner has the burden and must submit proof that the work claimed has in the past been performed exclusively by those claiming it. Awards 11129, 10389. The Employes here submitted no proof, but merely allege past practice. The Carrier, however, did submit proof to support its position that the work involved was track work and had been so treated historically on this railroad. Clearly, removing and replacing ties is track work not water service work. The project with which this case is involved is one comprehending both track work and water service department work. Water service employes performed water service department work here involved in the handling and installing of sewer pipes. They were under the supervision of a water service department foreman and properly so. This award removes the duality of track department-water service department interest in this project.