(1) The Carrier violated the effective Agreement when, on October 24, 1957 and thereafter, it assigned and used other than Track Department employes to perform the work of oiling switches at Markham Yard on the Chicago Terminal Division.
(2) The decision by Division Engineer Megee, dated January 24, 1958 and the decision by Superintendent Bodell, dated February 11, 1958, were not in conformance with the requirements of Section 1 (a) and (c) of Article V of the August 21, 1954 Agreement.
(3) Because of the violations referred to in Parts (1) and (2) of this Statement of Claim, the Carrier now be required and directed to allow the following claim which was presented on January 20, 1958, in behalf of Section Laborers John McMillan and F. E. Thompson:
All data in this submission have been presented to the Employes and made a part of the question in dispute.
OPINION OF BOARD: The Employes contend that Carrier's officers during handling of the claim on the property failed to give a reason for disallowing the claim as required by Section 1 (a) and (c) of Article V of the applicable August 21, 1954 National Agreement. The reason given was:
"Claim was presented in your letter dated January 20, 19.58 account work performed by Signal Department employes on oiling switches on the north and south Humps at Markham Yard, Illinois, on October 24, 1957.
The statement of reason, read with the letter therein referred to, is sufficient. Awards 9835 (La Driere), 10400 (Mitchell), 11231 (Sheridan), 11208 (Coburn) and 11441 (Dolnick).
Exhibits are attached to Employes' ex parte submission which show by the date thereof that they could not have been exhibited to Carrier during handling of the claim on the property. Carrier made no objection to such exhibits at its first opportunity. However, the pertinent part of Circular No. 1 of this Board provides that the ex parte submission shall set forth:
Accordingly, such exhibits are excluded from our consideration. See Award 11128 (Boyd).
Employes object in rebuttal submission to Exhibit I attached to Carrier's ex parte submission. Exhibit I is a letter dated August 31, 1955, to a Carrier officer, asserting on behalf of the Brotherhood of Railroad Signalmen the right to the work involved in the instant claim. The objection is on the ground:
"Carrier's Exhibit 'I' represents new matters not heretofore made known to the Employes or made a particular part of this dispute. Hence, it merits no consideration by the Division."
Whether Carrier's defense of past practice was raised while the claim was being handled on the property, is not clear from the record. The only record reference by Carrier on the point is in the letter dated August 15, 1958, from Carrier's Manager of Personnel to Employe's General Chairman:
The work involved is the oiling of the plates of power-operated (electro-pneumatic and electric) switches in the Markham Yard of Carrier's Chicago Terminal.
Employes assert that their craft has done this work at this location from the building of Markham Yard in 1925 until October 24, 1957, when Carrier assigned the work to Signalmen; Carrier asserts that the work has flowed back and forth between Maintenance of Way Employes and Signalmen, and denies that performance of the work by Maintenance of Way Employes was exclusive.
Employes assert that the work required the service of two men for eight hours per day; Carrier asserts that the work required only a total of 12 man-hours per week, and that the same is incidental to general maintenance services performed by Signalmen on the same switches.
Carrier asserts a past practice of dividing the work of oiling switch plates between two crafts: Maintenance of Way Employes on manually operated switches and Signal Employes on electric or electric-pneumatic switches; Employes deny such practice.
Carrier asserts that Signal Employes oil switch plates on automatic switches at other points on the Chicago Terminal; Employes deny the assertion.
The record is replete with assertion and counter-assertion, but devoid of competent probative evidence. Under this state of the record we are constrained to adopt the succinct opinion in Award 10740 (Miller):
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; 11887-2i 428