had been violated when these portable devices were constructed by Equipment Department employes. The correlation between the claim involved in Case No. 9.52 MW and the present dispute is readily apparent, i.e., each dispute concerns the claim of B&B employes when mechanical department employes constructed portable devices to be used in the performance of solely shop work. Neither the protective screens nor the portable wash rack became a part of any building or structure, nor were they attached to a building in any manner.

Based on the Awards referred to herein, the facts involved in the present dispute and the failure of the complainant Organization to pursue an almost identical claim based on the same agreement on this property, it is the position of the Carrier that the Organization cannot prove that the work involved was exclusively their work by any rule of the applicable agreement or practices thereunder. Therefore, their claim must fail.

OPINION OF BOARD: The work at issue in this dispute involved the construction of a locomotive wash rack. It was performed by a plumber employed in the Carrier's Equipment Department at Colonic, New York. The Organization contends that under the Scope and Seniority provisions of the Agreement between the parties, the exclusive right to perform this work belonged to plumbers of the Bridge and Building Department of the Maintenance of Way (M/W) Employes. It, therefore, makes claim on behalf of the two named M/W plumbers with appropriate seniority in this class at Colonic for twenty hours' pay because of the alleged violation.

It appears without dispute in the record that over a period of time there were three locomotive wash racks constructed at Colonic, New York, the Carrier's main locomotive repair point. The first, admittedly built by M/W plumbers of the Bridge and Building Department, was permanently installed by that Department's employes in the Wash Shed, Building No. 1, Colonic Shops. A second wash rack was later also built at Colonic, but not permanently installed there. While at the outset it was used for "run through" cleaning service in Bay 2 of the Colonie Diesel Shop, it was later removed and shipped to the Diesel House in Whitehall, New York, where it is presently in use. This rack was constructed by employes of the Equipment Department, apparently without objection or protest by M/W Employes. Lastly, the rack in dispute was built at Colonic, identical to the second, and also by an employe of the Equipment Department. It, too, like the second rack, was not intended for permanent installation, but, rather, was shipped on completion to Oneonta, New York, for use at the locomotive terminal there. All three racks were constructed from designs devised by the Equipment Department.

The Organization's basic contention in support of its claim of exclusivity is that this was work "accruing" to plumbers under the Scope and Seniority provisions of the Agreement and, as such, could not be assigned to employes outside the coverage of that Agreement.

The Carrier contends that (1) the two "portable" wash racks, including the one in dispute, both constructed by Equipment Department employes, are to be distinguished from the "permanent" one built and installed by the M/W employes; and (2) in any event the Claimants did not sustain the burden of proving that the disputed work is reserved exclusively to them.

The gravamen of the first argument of the Carrier is that as a portable piece of equipment the wash rack in question became part of the working inventory of the Equipment Department, especially since "it was not and has not been made an integral part of any structure." In view of the basic

functional and structural similarity of all three racks, to venture here into the dubious refinements of what is or is not a permanent fixture would be a hairsplitting exercise (Cf. Award 13045, citing Awards 10687, 4610, 4779, 10256).

Rather, in terms of the less debatable facts in this case and the more ample and apposite precedent of this Board, the much stronger and persuasive argument is the second one urged by the Carrier. It has been held in a long line of cases decided by this Board, a number involving the same contracting parties and Agreement as in this claim (e.g., Awards 7387, Cluster; 9001, Murphy; 9552, Bernstein; 7790, Smith; 8755, Sempliner, that where, as here, a Scope Rule does not specify or describe the items of work covered by the Agreement, it is then incumbent upon the Claimant to show not only that his craft or class "has traditionally and customarily performed the work at issue, using as the criteria, past custom and practice" (Award 7790, supra), but also that the practice is "consistent" and "of sufficient duration (Award 12905, Coburn; see also, among others, Awards 12972, 12021, 12022, 11791, 11988, 11956, 11907, 11755, 11720, 11581, 11401, 111784, 11707, 11658, 11645, 11231, 11118, 11081, 10903, 9953.)

The most that the Organization shows here is that but one of the three racks was constructed by employes under the coverage of its Agreement, a showing hardly sufficient to give it the dignity of denominating it a "practice" under the precedents of this Board (Cf., Awards 7031, Carter; 7784, Lynch; 8001, Bailer; 8755, Sempliner; 9565, Rose; 10014, Weston, 10515, Dolnick). Moreover, the Carrier points out that the other two racks were also built by its own employes, rather than contracted to "outside concerns", thus differentiating Awards 2701 (Carter) and 6305 (L. Smith) cited by the Organization.

In sum, the evidence in this record does not sufficiently establish the claim, and it, therefore, must be denied.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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 Agreement was not violated.

AWARD