THIRD DIVISION
(Supplemental)
THE DENVER AND RIO GRANDE WESTERN
RAILROAD COMPANY
(1) The Carrier violated the Agreement when it assigned and/or permitted employes of the Pittsburgh-Midway Coal Company and employes of the Morrison-Knudson Construction Company to operate machines at Tunnel No. 45. [Carrier's File MW-17-64]
(3) Cut Off Machine Operators G. A. Rich, W. H. Ogden, F. A. Rich, H. 0. Chappell Jr., J. R. Carlson, D. L. Drake, V. J. Thompson, C. R. Adams, C. C. Blair, L. L. Moore, A. B. Carlson, R. G. Wort and M. R. MeElvain each be allowed pay at his respective straight time rate for an equal proportionate share of the total man-hours consumed by contractors' forces in performing the work referred to in Part (1) of this claim.
(4) Each employe holding seniority in the B&B Department of the Colorado Division (names listed in attachment to letter of claim presentation) be allowed pay at his respective straight time rate for an equal proportionate share of the total man-hours consumed by contractor's forces in performing the work referred to in Part (2) of this claim.
April 27, 1964, Employes' president wrote S. H. Schulty, Executive Secretary, Third Division, NRAB that they intended to present the above two claims to your Board. The claim on the property last detailed above is believed by the Employes to be on appeal to your Board as Items (1) and (3) of the claim set out in Employes' April 27, 1965, letter to Mr. Schulty. Carrier denes the claim on the property is properly now on appeal before your Board. Carrier was not consulted, did not and does not now consent to any alterations, amendments, date deletions or consolidation of original claims considered on the property for Employes' appeal purposes to your Board.
The Agreement between this Carrier and the employes represented by the Brotherhood of Maintenance of Way Employes, effective February 1, 1941, Including Changes and Interpretations to Date of Reissue March 1, 1952, and subsequent Memorandums of Agreement up to and including the date of this claim are incorporated herein as a part hereof by reference.
OPINION OF BOARD: On the night of March 11, 1964, a fire occurred in Tunnel No. 45, located near Mile Post 140 on the Carrier's Colorado Division.
The tunnel burned out and caved in, disrupting main line service Denver to Orestod to Craig. Train service was restored on March 27, 1964.
Carrier confronts this Board with a procedural question contending that the "claim as presented to the Board" is not the same claim that was handled on the property. The Employes urge that two claims handled on the property were consolidated into one submission thus avoiding duplication of claims. The Board does not agree with Carrier's plea for dismissal on grounds presented. The record discloses that Carrier has not been misled in the Employe's Submission and such consolidation of like claims in one submission is to be encouraged. (See Awards 12424-14877.)
Claimants contend the work in question is covered under Rule 1 of their Agreement dated February 1, 1941-a Scope Rule of the broad and general type. When confronted with such a rule, we must find that the work in question has been historically and traditionally reserved to the complaining craft else Claimants cannot prevail. The record is barren of such proof. Carrier alleges that on previous occasions under like circumstances a contractor had been engaged to perform work of the character involved here. There was no denial to this defense.
Our conclusion to deny this Claim is supported by previous awards of the same parties and agreement here. See Awards 11118, 11831, 14525 and 14638.
FINDINGS: The Third Division of the Adjustment Board, 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