MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS
The claim of the Employes and Organization is wholly unsupported by agreement rules, past practices and Awards of the National Railroad Adjustment Board. It is, in effect, a request that the Third Division write a new rule into the controlling agreement providing that the moving of shelving is the work of Bridge and Building Department Employes -a request for something that the Third Division has on many occasions held that it does not have the power to do.
For each and all of the foregoing reasons, the Carrier respectfully requests the Third Division deny the claim of the Organization in its entirety.
All data submitted in support of the Carrier's position have been heretofore submitted to the Employes or their duly accredited representatives.
The Carrier requests ample time and opportunity to reply to any and all allegations contained in Employes' and Organization's submission and pleadings.
Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, deny each and every, all and singular, the allegations of the Organization and Employes in alleged unadjusted dispute, claim or grievance.
For each and all of the foregoing reasons, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, respectfully request the Third Division, National Railroad Adjustment Board, deny said claim and grant said Railroad Companies, and each of them, such other relief to which they may be entitled.
OPINION OF BOARD: Carrier contends that the Board does not have jurisdiction because the complaint filed fails to identify the names of the Claimants involved herein and because it does not comply with the time limit provisions as set forth in the National Agreement of August 21, 1954. This Carrier offered similar defenses in other cases before this and other divisions, and they have been rejected. The Board reaffirms its prior decisions. See Third Division Awards 7813 and 8506.
The record presents these facts: A number of years ago Carrier rented or leased a building in Dallas, Texas, in which the Bridge and Building Employes built shelving. The building was destroyed, but the shelving was torn down and moved and erected in another building. This service was performed by the same Employes group. In January, 1958, Carrier again decided to move the shelving; this time to its passenger station in Dallas, Texas. This work was performed on a contract basis by a construction company other than the Bridge and Building Employes.
The question to be determined is whether Carrier had a right to contract the work with an outside construction company without violating the Scope Rule of the parties. The provisions involved are:
Carrier set forth the contention that the Scope Rule is non-exclusive, that there is no tradition, custom, and practice reserving this work to the Bridge and Building Employes, and that the specific type of job contracted for was not in the nature of maintenance of way work. Claimant, on the other hand, argues that this work is reserved to the Bridge and Building Employes under the Scope Rule and that their right to perform this work is supported by actual practice.
The Board notes that the record is clear on the fact that the Bridge and Building Employes performed the work on two occasions. Without indicated reasons, negotiations, or change in the Agreement, Carrier contracted for this work with another company. The fact that both parties on two occasions were in agreement as to the application of the Scope Rule binds them to accept the same principle on the third occasion where the situation is similar if not identical. Carrier cannot claim that the very shelves Bridge and Building Employes moved twice on previous occasions are not maintenance of way work under its own interpretation of the Scope Rule and the acceptance of this work performance.
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