41 (a) All work which is done by Company forces in the construction, maintenance, repair, or dismantling of bridges, buildings, tunnels, wharves, docks, water tanks, turntables, platforms, walks, and other structures built of brick, tile, concrete, wood or steel the painting of bridges, buildings, docks, platforms, walks, turntables, tanks and other structures, hand rails in buildings and on bridges, and the erection and maintenance of signs attached to buildings or other structures, shall be performed by employes of the bridge and building subdepartment.
On February 4, 1970, a district extra gang foreman, a section foreman and ten (10) section laborers hauled three (3) culvert pipe to Mile WE-216 on the Yellow Creek Branch on the CV Division. The culvert pipes, two (2) of which were 18 feet long and k; feet diameter and the other 20 feet long and 3 feet diameter, were hauled on two (2) "truck cars" (small flanged wheel cars) towed babind a hi-rail truck. On February 5, 1970, the aforementioned track forces installed the culvert pipes.
The work of installing culvert pipes is work that is encompassed within Rule 41, specifically Section (c) thereof, and, therefore, it is work of a character that is contractually reserved to B&B forces. Heretofore, the Carrier has customarily and traditionally assigned B&B forces to perform all work of this character. The claimants were available and would have willingly performed this work if the Carrier had so desired.
Claim was timely and properly presented and handled by the Employes at all stages of appeal up to and including the Carrier's highest appellate officer.
The Agreement in effect between the two parties to this dispute dated May 1, 1960, together with supplements, amendments and interpretations thereto is by reference made a part of this Statement of Facts.
CARRIER'S STATEMENT OF FACTS: On February 4, 1970, two track department gangs trucked, via two truck cars coupled to a hi-rail truck, two 18 ft. pipes and one 20 ft. pipe to a work site on carrier's Yellow Creek Branch of its Cumberland Valley Division and on February 5 these same gangs installed the pipe.
Employes claimed that the working rules agreement between carrier and its employes represented by the Brotherhood of Maintenance of Way Employes was violated when the track subdepartment employes performed the work on February 4 and 5 and filed claim of Bridge and Building Subdepartment employes, it being their position that such employes had exclusive right to the work.
Carrier did not agree that there was any violation of the agreement on either date and consequently declined the claim. Copies of correspondence exchanged in connection with the claim are attached and are identified as Carrier's Exhibits "A" through "H."
There is on file with the Third Division a copy of the current working rules agreement and it, by reference, is made a part of this submission.
OPINION OF BOARD: On February 4, 1970, two track department gangs trucked, via two truck cars coupled to a hi-rail truck, two eighteen (18) foot pipes and one twenty (20) foot pipe to a work site on Carrier's Yellow Creek Branch of its Cumberland Valley Division and on February 5, 1970, these same gangs installed the pipe.
Claimants, Bridge and Building Department employes, contend they were entitled to perform the work on February 4 and 5, 1970, as provided for in the parties' Agreement, Rule 41(a) and (e) which reads:
Carrier contends that Claimants did not have the exclusive right; (1) to truck the pipe to the work location on February 4, 1970 and; (2) Claimants do not have the exclusive right to install pipe for drainage purposes. Carrier asserts that track department employes bave heretofore installed small pipes.
The Organization relies upon the clear language of Rule 41(a) and (e) in support of its contention that the involved work has been contracted to the Bridge and Building employes. While Carrier has asserted that track department employes have heretofore installed small drainage pipes, a review of the record finds no evidence to support Carrier's assertion. In passing, from the description of the size of pipes involved here, they could hardly be considered small.
In the opinion of the Board, Rule 41(a) and (e) clearly contemplates installation of pipe as within the purview of Bridge and Building work. Furthermore, work incidental, such as hauling the pipe to the work location, is interrelated to the primary project of installing the pipe and rightfully is work of Claimants. We, therefore, sustain ?art (1) of the claim.
In regard to the question of damages, Carrier argues that Claimants, being fully employed during the period of this dispute, suffered no loss of earnings and to assess damage would be nothing more than a penalty.
A close review of the record clearly shows that such a contention, as urged by Carrier, was not raised on the property and since this Board has held on numerous occasions that issues not raised during the handling on the property cannot be considered by this Board, tbsn Carrier's belated contention on the monetary claim cannot now be given any consideration. We, therefore, sustain Part (2) of the claim.
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;