STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier used a mechanical department employe instead of Bull to operate a bullgrader on August 11,.14, 15, 18, 17, 18, 21 and 23, 1987. (System file 1-25/E 804-11)
(2) Bull-grader Operator Aubrey Morris be allowed fifty-three (68) hours' pay at the bullgrader operator's rate because of the viol tion referred to in Part (1) of this claim.
EMPLOYES' STATEMENT OF FACTS: The claimant has established and holds seniority in Seniority Rank 3 of the track sub-department as of December 3, 1948.
During the period from August 11 through August 23, 1987, the Carrier used a Mechanical Department employe, who had no seniority within the Maintenance of Way and Structures Department, to operate a bullgrader that was being used in the repair of a road crossing located in the vicinity of the Round House and shops at Radnor Yard, Nashville. Tennessee.
Inasmuch as bullgrader operators are encompassed within Rank No. 3 of Rule 6(a) of the Maintenance of Way Employes' Agreement the work of operating a buligrader, when it is used to perform Maintenance of Way work, is reserved to employes covered by that agreement under the provisions of Rule 1 thereof which reads:
"Subject to the exceptions in Rule 2, the rules contained herein shall govern the hours of service, working conditions, and rates of pay for all employee in any and all subdepartments of the Maintenance of Way and Structures Department, represented by the Brotherhood of Maintenance of Way Employes, and such employes shall perform all work in the maintenance of way and structures department."
Claim was timely and properly presented and handled by the Employee at all stages of appeal up to and including the Carrier's highest appellate officer.
The Agreement in affect between the two parties to this dispute dated May 1, 1980, together with supplements, amendments and interpretations thereto is by reference made a part of this Statement of Facts.
CARRIER'S STATEMENT OF FACTS: Carrier's Radnor Shops are located at Nashville, Tennessee. The roads and the crossings in the Shop area were in such condition that repairs were necessary, and the Mechanical Department borrowed a Bulldozer from the Maintenance of Way Department to do the necessary scraping and grading.. These roads and crossings are for use by shop men and also trucks for delivering supplies.
A shop employe operated the Bullgrader, and the employes claimed that thin was a violation of the Maintenance of Way Agreement of May 1, 1900 (on file with your Division and by reference made a part of this submission). Carrier saw no basis for the claim and it was denied. Correspondence exchanged in connection with the claim
OPINION OF BOARD: The dispute arose when Carrier, on August 11, 14, 16, 18, 17, 18, 21 and 29, 1907, assigned a shop man, from the Mechanical Department, to do scraping and grading of crossings and roads in the shop area at Nashvilled, Tom:., with a bullgrader borrowed from the Maintenance of Way Department.
Petitioner contends that the work of scraping and grading of crossings and roads is covered by its Scope Rule which reads as follows:
Carrier does not dispute scope rule coverage, however, it contended, on the property, that its actions were proper under Rule 2 (f) of the agreement and therefore the work was not exclusively reserved for Employes, Rule 2(f) reads as follows:
The record reveals that the assignment herein was not made pursuant to Rule 2(f).
Carrier's defense is in effect an admission that the work in dispute is reserved for the Employes herein. Where, by agreement, parties created a limited exception to a rule, which is effective only when its terms are met, the exception does not defeat the rule. On the contrary it reinforces it The need for the exception proves the vitality of the Rule. There would be no need for an exception if there had not been a controlling Rule in the first place.
Accordingly, we find that the rights Carrier has under Rule 2(f) do not destroy the exclusivity enjoyed by Petitioner under its Scope Rule.
As to the assignment of the shop man, Carrier contends that as it had certain rights to contract out work under Rule 2(f), it also had the option of assigning the operation of the tool involved (the bullgrader) to a qualified employe under any agreement. We find that Rule 2(f) merely gives Carrier the right to contract out undw certain limited circumstances, non of which are present here, and does not give Carrier the right it asserts,. In this connection, it is a recognized rule in the construct'.on cf contracts that where one or more exceptions to a rule are expressed no other or further exceptions will be implied.
Raving found that the scraping and grading involved is covered by the Scope Rule of the herein agreement it appears logical that the person to be assigned should come from among the Empicyes for whose benefit the agreement was made. That, of cour scraping and grading for performance by Employee under the agreement and then contend that employes from any class, under any agreement, who were capable of operating the machine, could be assigned. Therefore we are of the opinion, that Award 19088 has relevance to the herein dispute. It reads in part as follows:
Having found that the work in dispute is reserved for Employes herein we further find that the bullgrader operator should have been assigned to perform the work rather than the shop man. Accordingly, we will sustain the claim. (Award 15889.)
This Board has notified the Organization representing the shop man, who performed the work, of dispute and invited its participation. That Organization has declined to participate. However, despite the declination we have discharged our reaponeibility under Transportation-Communication Employee Union v. Union Pacific Railroad Company (386 U.S. 157) by finding that the assignment of the shop man to do the scraping and grading violated Petitioner's agreement.
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 wit approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and