from the contract between the M-K-T and the Santa Fe covering operation and maintenance of the interlocker (which is the exclusive property of the Santa Fe, and on right of way owned by the Santa Fe); that the same contract which makes it possible for the Maintenance of Way employes on this Carrier to have the right to perform any work on this crossing expressly reserves to the Santa Fe the right to make such repairs to the interlocker or crossing which in its judgment are necessary.

Clearly the agreement has not been violated and the Carrier respectfully requests the claim be denied.

All data submitted in support of the Carriers' position have been heretofore submitted to the Employes or their duly accredited representatives.

The Carriers request 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, usually referred to as Katy, has an agreement with Atchison, Topeka and Santa Fe Railway Company (hereinafter referred to as Santa Fe) giving it the right to cross over the Santa Fe tracks at Woodward, Oklahoma. Paragraph 7 of the Agreement between the two railroad companies reads, in part, as follows:

On January 30, 1958 Santa Fe notified Carrier's Superintendent by Western Union as follows:

Santa Fe made such repairs with their employes and billed Carrier therefor. Carrier paid the charges.

Petitioner contends that it is "the Carrier's responsibility to maintain and repair this crossing and only when they fail to maintain the crossing or refuse to do so is the work to be done by employes of Santa Fe." Since the record does not show that Carrier refused to properly maintain the crossing or re-

fused to make necessary repairs, the work belonged to Maintenance of Way employes covered by the Agreement with the Carrier. Further, there is no evidence that an emergency existed which authorized employes of Santa Fe to do this work. Petitioner argues that Carrier, upon receipt of the telegram from Santa Fe, could "have protected their own employes by advising they would perform this work since they had, by message, been made aware of the fact of the track's condition which now necessitated repair."

The Agreement between Santa Fe and Carrier gives Santa Fe every right to make repairs at the crossing and bill Carrier for the work, whether or not an emergency existed and whether or not Carrier felt that such repairs were necessary. If Santa Fe directed Carrier to make such repairs and Carrier was of the opinion that the repairs were unnecessary, Santa Fe could still make such repairs and the question of necessity and Carrier's liability would be a controversy between the two Carriers. Petitioner would still have no claim to the work performed.

There is nothing in the record to show collusion between Santa Fe and Carrier to deprive the employes covered by the Agreement of this work.

The right of Maintenance of Way employes, under contract with the Carrier, to perform this work depends upon the nature of the contract between Santa Fe and the Carrier. In Award 11002 (Boyd) we said:

"There have been many instances where two or more rail Carriers have found it necessary and desirable to enter into contracts for the performance by one of them a joint or mutual duty or in other ways to share work required to be performed. . . The work to be performed under these circumstances falls to the Carrier and its employes who by reason of such agreements between Carriers, have the superior or contractual duty to perform it."

Santa Fe, under its contract with the Carrier has a superior right to perform such maintenance and repair work when, in its judgment, such work is necessary.

There is no reason to rule on the jurisdictional question raised in the record by the Carrier.

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 did not violate the Agreement.

AWARD Claim is denied.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary