to which the gang could be assigned has been completed, and if the gang could not be used to perform certain maintenance work there would be no reason for its existence.
For the reasons outlined herein Carrier submits that the claim of the Employes is entirely without merit and we respectfully request the Board to so find and deny the claim.
OPINION OF BOARD: There is no disagreement concerning the general circumstances which gave rise to this claim.
The Claimants are members of Signal Gang No. 10 which was engaged in a construction project at Kona, North Carolina, for a period of time until February 27, 1959. On that date, Carrier moved this gang away from the work. On 9 days during the period March 9th through March 19th, 1959, Carrier assigned various other employes to complete the construction work that had been started by Gang No. 10.
Petitioner charges violation of the Agreement and demands payment of 8 hours additional pay at their respective regular rates of pay to members of Gang No. 10, varying from 9 days to the most senior SC&E Man, to one day for the least senior SC&E Man and four days for SC&E Helper for work performed by two Leading SC&E Maintainers, two SC&E Maintainers, an SC&E Man and SC&E Helper in allegedly improper usurpation of gang members' jobs.
1. Carrier does not refute Petitioner's characterization of the work done on the Kona project as "construction" rather than "maintenance" in nature.
2. The Agreement does not distinguish anywhere between "construction" and "maintenance" type of work assignments, either in its Scope section, its seniority rules, its pay rates or in its listing and description of titles in its classification rules, except that in one place-Rule 5-it describes an SC&E Maintainer as "an employe assigned to a section or plant performing generally recognized maintenance work." Since this is the only classification which is defined in terms of type of project, some significance must be attributed to it. But it must be immediately pointed out that the language here is not expressly restrictive against doing other work or permitting others to do this work, as it is in two places in the Agreement. In Rule 8 SC&E Helperit is provided: "A helper shall not be permitted to perform work of other classes as named in this agreement" and the last sentence of the Scope section referring to all of the covered classifications together states: "No person other than those classified herein shall be permitted to perform any of the work described herein." (but makes no distinction for classifications).
3. Putting to one side for the moment, the question of whether SC&E Men may properly be denied "construction" type of work, certain other aspects of the claim may be disposed of on the basis of the Agreement language:
4. We deal now with the claims on behalf of the other four SC&E Men who were members of Gang No. 10 and are alleged to have been improperly replaced by two SC&E Maintainers. On this subject we find some Agreement terms which suggest other than the inference which might be drawn from Rule 5 that the parties intended to reserve constru~tion work for SC&E Men only.
It will be seen from the foregoing that the Agreement terms do not in other respects unambiguously uphold the interpretation given by Petitioner to Rule 5 as an obligation to reserve construction work for SC&E Men only and more particularly (in terms of the instant claim) that assignment of SC&E Maintainers to construction or installation work creates a violation in injury of SC&E Men who are not associated in the Agreement with non- 13021-33 945
maintenance work only (or any other specific type of project)-or are even claimed to have such Agreement assurances. For the claim is not made here on behalf of SC&E Maintainers who have been denied maintenance work, but that SC&E Men have been denied construction work and redress is sought for the latter.
We conclude that the Agreement does not clearly and unambiguously establish the basis for the claim that Petitioner is here asserting for the facts of this record. Practice therefore becomes relevant as a guide to the intentions of the parties as expressed by them in performance.
1. Rule 47 of the Agreement provides for a bulletin form to be used in advertising positions.
The record shows that these forms were used in announcing the openings for the employes who were later assigned as displacements for members of Gang No. 10 and copies are included in the docket. Petitioner points out that the duties described for those who have the SC&E Maintainer title refer to such functions as "repairing . . testing . . bonding . . . relocating bootlegs." Carrier on the other hand, points out that every description for a Maintainer concludes with the phrase, ". . . and other duties covered under the heading of Scope" and that the Scope section of the Agreement describes the whole range of construction, installation, testing and maintenance work of all covered employes.
We note also in connection with the foregoing that Bulletin No. 720, advertising for a bid from an SC&E Man (not a Maintainer) uses language generally similar to that which was used in the bulletins for Maintainers, and concludes with the same catch-all phrase: ". . . and other duties covered under the heading of Scope."
It will be seen from the foregoing that (a) the assignments have been made general enough so as to comprehend the possibility of both maintenance and construction type of work, and (b) there has been a mingling of SC&E Maintainers and an SC&E Man under similar general instructions so as to minimize a presumption of distinction between the kinds of work to which each would be sent. (The bulletin for the SC&E Man goes back to September 1954, some four and a half years before the date of the occurrences which are the basis for the instant claim.)
2. In the course of the interchanges on the property between Petitioner and Carrier, the Carrier's representative stated:
In its Ex Parts Submission to this Board, Carrier supports this contention more specifically by reference to 45 instances of construction or installation projects for the period August, 1956 through December, 1959. It states that of these additions, 26 were made entirely by employes not assigned to SC&E Gang No. 10 and that both maintainers and gang members (SC&E Men) performed some work on 14 of these installations prior to the subject one. Job numbers, descriptions of projects, locations and employes doing the work are itemized. 13021-34 946
We note that Petitioner regards this record as inadmissible for consideration by us on the grounds that it was not explicitly recited by Carrier to Petitioner prior to submission of the claims to this Board. We disagree with Petitioner. Carrier is shown to have clearly asserted to Petitioner that its position was, in part, based on an allegation by it of such a history of practices. The further support of such a posture by citations from Carrier's records does not constitute an instance of bringing in new grounds such as would constitute an impermissible departure from the way the matter was argued on the property. On the other hand, Petitioner, on whom the burden of proof falls for support of its claims has failed affirmatively to show a record of practices which would support its interpretation and contentions.
The Agreement does not expressly support the claims for the given circumstances. Petitioner has not supplied proofs of practice to show demonstration of mutual intent favoring its position. The claim must fall.
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