Particular attention is called to the Note appearing as a part of the Scope Rule. The same Note appears in the Scope Rule of the Agreement effective June 1, 1942.
The practice of having manganese steel repaired by electric welding by the Teleweld, Inc., and other electric welding contractors, had prevailed for five years prior to the agreement effective June 1, 1942.
At the present time the Carrier has eight (8) welding gangs on its Southern Region, which is approximately the same number of gangs since 1937. These welders perform the same type of welding, i.e., acetylene welding, that they have performed for the past 25 years. Electric welding has not been substituted for acetylene welding. Acetylene welding cannot be used with any degree of satisfactory results on manganese steel. The amount of welding performed on manganese steel by Teleweld, Inc., is a very small part of the total welding performed on the Carrier's Southern Region by its acetylene welders. Welders under the Maintenance of Way Agreement have never performed electric welding and are not qualified to perform such work.
OPINION OF BOARD: The instant claim is filed to challenge the Carrier's practice of contracting out certain electrical track welding involving manganese repairs.
Organization contends that subcontracting of this work is in violation of the parties' Agreement, which, in a note to the Scope Rule, states:
The Organization asserts that the Carrier has substituted electric welding for acetylene welding, that its own welders had done electric welding and were qualified to do the disputed work, and that therefore this work should be reserved to Organization welders under the terms of the parties' Scope Rule.
The Carrier denies liability. It argues that this work has continually been contracted out without Organization challenge, even during negotiations; that it lacks the necessary equipment and qualified employes to do this specialized welding and that there has never been a substitution of electric welding for acetylene welding as is required by the Note to the Scope Rule for Organization to prevail.
Organization has not met the burden of proving that the electric welding work in dispute is embraced within the Scope of the parties Agreement. The Note to the Scope Rule on which it relies, requires a "substitution" of electric
for acetylene welding, for the former to be reserved to Maintenance of Way employes. The evidence is that there has not been any such substitution: Acetylene welding continues to constitute the great bulk of welding work done on the property. There is no evidence that electric welding has increased in amount, or that it has replaced acetylene welding to any substantial degree. In the absence of proof of such replacement, we must find that the Organization's claim of jurisdiction over this subcontracted work lacks merit.
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