NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Edward A. Lynch, Referee

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES LOUISVILLE AND NASHVILLE RAILROAD COMPANY

(1) The Carrier violated the Agreement when it contracted with the Carter Construction Company, whose employes hold no seniority under the scope of the Agreement, to perform the work of removing a temporary track and to perform other track work between Mile Post 2 and Mile Post 3 on Line "D." (Carrier's File E-201-6 E-201.)

(2) Track Foreman J. W. Graham and Track Laborers Fred Stafford, James Webb, W. T. York, Oliver Wade, Walter Webb and Thomas Wells each be allowed pay at their respective straight time rates for an equal proportionate share of the total number of man hours consumed by the contractor's forces in performing the work referred to in Part (1) of this claim.

"November 4, 1964

1-23

Mr. H. B. Lewis

Division Engineer

L&N Railroad Co.

110 West 9th Street

Chattanooga, Tennessee

Claim is hereby made that the following named Track Department employes with seniority in the applicable rank indicated, each to be paid an equal proportionate share of the total man hours worked by employes of Carter Construction Company, or other contractor, while said contractor's forces were assigned to remove a temporary track that had been used at a point where an overhead bridge for highway traffic was constructed between Pole 3-10 and Pole 3-4 on Line D, which carries inbound freight traffic to Radnor Yard from the Atlanta and Chattanooga Divisions.

Correspondence exchanged in connection with the claim is attached and identified as Carrier's Exhibits AA, BB, CC, DD, EE, FF, GG, HH, and II.

(Exhibits not reproduced.)

OPINION OF BOARD: Rule 2 (f) of the applicable agreement provides that:

The Organization admits Claimants here were not cut off employes at the time, but in its ex parts submission to this Board the employes allege "the Carrier has never denied or refuted the fact that it had sufficient equipment laid up to perform the subject track work."

On April 9, 1965 the Carrier while the claim was being handled on the property, advised the General Chairman:

The issue we have here is the same issue that was disposed of by Awards 11085 (Boyd), 11289 (McMahon), 13979 (Williams), and 14122 (Harr), involving these same parties. They were denial Awards.

It is clearly evident this claim must also 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

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary