NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Arthur W. Devine, Retleme

SOUTHERN PACIFIC TRANSPORTATION COMPANY

(Pacific Lines)

(1) The Carrier violated the Agreement when, without prior notice to General Chairman C. L. Ashley as required by Article IV of the May 17, 1968 National Agreement, it assigned the work of installing and repairing right-of-way fence from M.P. 7210 to M.P. 1216 on the Eastern District of the Tucson Division to outside forces. (System File MofW-152-699.)

(2) B&B Foreman J. R. Musgrove, Lead Carpenter L. E. Poole, and Carpenters M . E. Parra, E. I. Snelling, L. Graves and E. A. Marquee each be allowed pay at their respective straight time rates for an equal proportionate share of the total number of man hours expended by outside forces in performing the work referred to in Part (1) of this claim.

(3) The Carrier shall also pay the claimants six percent (6 G.) interest per annum on the monetary allowances accruing from the initial claim date until paid.

"These rules govern rates of pay, hours of service, and working conditions of cmployes in all sub-departments of the Maintenance of Way and Structures Department (not including supervisory employes above the rank of foreman) represented by the Brotherhood of Maintenance of Way Employs, such as:

la) Foremen and assistant foremen of bridges, buildings, tunnel, painter, construction, concerete, mason, water supply,

Department, rep,e:.tnted by the Petitioner, beating effective date of July 1, 1964 (hereinafter referred to as the Current Agreement), a copy of which is on file with the Board and is hereby made a part of this submission.

On Carntr'o Eastern District of the Tucson-Rio Grande lhvL-~:,, i=:rmediate repairs wire required to right-of-way fences east of Doming, New Mexico, between location of Milepost 1210 to Milepost :216 to prevent cattle of adjoining ranchers from straying onto Carrier's trackage. One of the ranchers, Mr. Laurence S. Jackson, offered to furnish his own labor to make the repairs to the fences for consideration of $650.00, providing Carrier furnished material for such fence repairs. Carter accepted Mr. Jackson's offer; -.:.se repair work cnmmeneed on or abort -lay 1. 1969, and was completed on or Defer; May 20, 1969.

3. By letter dated June 8, 196,9 (Carrier's Exhibit "A"), Petitioner's District Chairman submitted claim to Carrier's Division Superintendent in behalf of six employes of the Bridge and Building Sub-department; namely, B&B Foreman J. R. Musgrove, Lead Carpenter L. E. Poole, Carpenters M. E. Parra, E. J. Snelling, Leon Graves and E. A. Marquez (hereinafter referred to collectively as claimants), assigned to B&B Gang No. 3 at Lordsburg, New Mexico, for alleged violation of the Current Agreement when on or about May 19, 1969, Carrier deprived claimants of thch- alleged right to perform the work on these fences without notifying the General Chairman in writing in advance.

By lettar dated June 12. 1069 (Carrier's Exhibit "B"), Carrier's Division Superintendent denied the elairi. By letter dated June 15, i9C·9 (Carrier's Exhibit "C"), i'eWioner's District Chairman gave notice that the claim Acould be appealed.

By lc'trr dated .lure 30, 1969 (Carrier's Exhibit "D"), Petitioner's General Chairman appealed the claim to Carrier's Assistant Manager of Personnel and by letter dated November 24, 1969 (Carrier's Exhibit "E"). the latter denied the claim.

(Exhibits not reproduced.)

OPINION OF BOARD: The Petitioner contends that the Carrier violated the agreement when without prior notice to the General Chairman, as required by Article IV of the May 17, 1968, National Agreement, it contracted the work of installing and repairing might-of-way fence on the. Eastern District of the Tucson Division.

The Carrier contends that the work involved is not reserved exclusively to Maintenance of Way employes; that the contracting in this instance was in accordance with a long established practice, and in accordance with prior awards of the Division involving the same parties. In the handling on the property the Carrier also contended that there were no E&B forces available to do the work at the time required as they were enrployd on other work during this time and that no time was lost by any of the Claimants. Tire Carrier, in the handling on the property also called attention to that part of Article IV of the May 17, 1968, Agreement reading:

"Nothing in this Article IV shall effect the existing rights of either party in connection: with contracting out."

"The first paragraph of said Article IV deals with the contractir.- out of work 'within the scope of the applicable schedule agreement.' It does not say the contracting out of work reserved exclusively to a craft by history, custom and tradition. This Board is not empowered to add to, subtract from, or alter an existing agreement. We therefore conclude that inasmuch as Maintenance of Way Employes have in the past performed such work as is in dispute here, then said work being within the scope of the applicable Agreement before us, Carrier violated the terms thereof by failing to notify the General Chairman within 15 days prior to the contracting out of said work. In reaching this conclusion, we are not asserting that the work here in question cannot be contracted out later after the giving of the required notice. We are only saying that since the work in question came within the scope of the Maintenance of Way- Agreement, Carrier was obligated to give said Advance notice. Failing to do so, Carrier violated the terms of Article IV of the May 17, 196;8 National .Agreement -overninn the parties to this dispute."

That the parties waived oral hear7ng;

That tho Agreement was violated as set forth in the Opinion.

AWARD