(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated its Agreement with the Brotherhood of Maintenance of Way Employes and of practices thereunder and also violated the National Railway Labor Act when, without negotiation and agreement with the BMWE, it allocated to the International Association of Machinists the work of repairing and maintaining Maintenance of Way Department trucks and roadway machines (System Time
(2) The work of repairing and maintaining MofW trucks and roadway machines be reassigned to employes formerly performing this work and who are represented by the Brotherhood of Maintenance of Way Employes.

 (3) Nick Cortez and C. E.Corbin and/or their successors each be allowed pay at their respective straight time rates for an equal proportionate share of the total number of man hours expended by machinists in performing the work described in Parts 1 and 2 above, beginning with May 31, 1971 and continuing until the work is restored as requested in Part 2 above.

 OPINION OF BOARD: The merits of this case concern a scope claim; however,
 because the record presents an unusual third party issue,
 we believe a brief overview of the case is in order.

 Work being performed by Maintenance of Way Employees was claimed by the Machinists, whereupon, the Port Terminal Railroad Association (Carrier hereafter), without discussion or agreement with the Maintenance of Way Organization, gave the work to the Machinists. The Carrier did not, however, in the resulting disput of the Machinists' Agreement which it regarded as reserving the work to the Machinists, nor has it done so in its submission to this Board. In essence, then, we have two crafts claiming the same work, but the agreement language supporting one of the claims, the Machinists, is absent from the record made by the parties. In due course the Third Division, National Railroad Adjustment Board, gave the custo have declined to appear. In speaking about its decision of non-appearance in a letter dated October 20, 1972, the Machinists Organization stated:




We are thus presented with the difficulties of the absence of a thud party which has an important interest in the dispute, as well as the absence (from the record made by the parties) of the agreement language by which to determine such third party's rights. We do not find these difficulties insurmountable, howe including the interests of the non-appearing third part%.

 With this general background before us, we note that essentially these same third party problems were preszznted to the Second Division in Award 5766 (Dorsey), September 10, 1969. There, after receiving the customary Third Party Notice, th that--

The Second Division, in holding that its jurisdiction was not affected by the Association's non-appearance, stated the following:

i

I




This same result was reached in an earlier Second Division Award, 5509, rendered by Referee Ives and approved by the Second Division on July 6, 1968. See also T-C. E. U. v. Union Pacific R. Co., 38 US 157 (1966), wherein the U. S. Supreme Court Board, after having given an appropriate Third Party Notice, but without regard to whether the notic the railroad" and the petitioning Organization in the dispute, "but, 'in light of... contracts between the railroad'and any other union 'involved' in the overall dispute, and upon consideration of 'evidence as to usage, practice and custom' pertinent to all these agreements." Since the National Railroad Adjustment Board is composed of divisional boards, without there being any internal board which has exclusive jurisdiction over disputes which overlap divisional boards, this Supreme Court mandate must necessarily be carried out by one of the divisional boards. Accordingly, the Third Division Board has jurisdiction over the instant dispute, including jurisdiction over the non-appearing third party, the Machinists: in order to fulfill our jurisdiction we have made the Mac the National Railroad Adjustment Board, a part of the record of this dispute. (Such agreemert is entitled "agreement between the Port Terminal Railroad Association and the Emploves Represented 61· Svstem Federation No. 14, Railway Employes' Department, A.F, of L., Nechanical Section thereof, effective March 1, 1952.)

 With regard to the merits, the Petitioner alleges that, on this property, the Carrier's Bridge and Building employees, `laintenance of Way Department, have traditionally performed the work of repairing, maintaining, and servicing Maintenance of Way trucks and roadway equipment. It is further alleged that the duties of claimants, a carpenter and helper in the Maintenance of Way Department, p necessary, on the line of road. Upon protest about this work by the Machinists, the Carrier gave that craft the foregoing work performed by claimants, effective May 5, 1971. No dis Employees preceeded this action. Claimants were offered the opportunity to continued performance of the work, as new employees of the Machinists craft, but they declined and two new hires resulted.

 Carrier's defense to the Maintenance of Way claim is essentially based on the contentions that: (1) the Maintenance of Way Agreement does not reserve the disputed work to that craft;. and (2) the Machinists' Agreement does reserve the wor work may have been assigned to Maintenance of Way employees for a period of time is not relevant.
                    Award Number 19949 Page 4

                    Docket Number MW-19869


The record does not support these contentions. With regard to
 the first of these contentions, although their scope rule is a general one,
 the Maintenance of Way Employees have proved a reservation of the involved
 work by a preponderance of the record evidence. Written statements from
 the two claimants and six other Maintenance of Way employees, all of whom
 appear to have first hand knowledge about the disputed work, abundantly
 demonstrate that such work has been traditionally and customarily performed
 on this property by Maintenance of Way employees for at least 32 years. No
 where in the record does Carrier dispute or offer any evidence to contra
 dict the Petitioner's evidence and, moreover, while the claim was on the
 property, the Carrier made an admission which strongly corroborates Peti
 tioner's evidence. In an August 31, 1971 letter, the Carrier, in pertinent
 part, stated:
 "We all agree that over the past years this repair and
 maintenance work was spread over the different departments
          of the Association with each craft taking care of their -

          own equipment, but when faced with claims from the Inter

          national Association of Machinists as to this falling under

          the existing agreement between the Association and this

          craft, and failing to find any portion of the other crafts

          agreement, Maintenance of Way included, that either called

          for a mechanic or spelled o«t the work assigned to a mechanic

          of that craft, the Association Management agreed to assign

          the repair and maintenance of Port Terminal Railroad's

          company trucks and roadway machine equipment to the machin

          ist craft."


In view of the foregoing, and on the whole record, we find that the disputed work belonged to the Ma Maintenance of Way Agreement.

 The Carrier's second contention, that the work belonged to the Machinists, apparently is based on Rule 36 of the Machinists' Agreement which reads as follows:

                "CLASSIFICATION OF WORK


                      Rule 36


          "Machinist's work shall consist of laying out, fitting, adjusting, shaping, boring, slotting, milling and grinding of metal used in building, assembling, ma dismantling, and installing locomotives and engines (operated by steam or other power), pumps, crane elevators, pneumatic and hydraulic tools and machinery, shafting and other shop machinery, rachet and other skilled drilling and reaming; tool and die making, tool grinding and machine grinding, axle truing, axle, wheel and tire turning and boring; engine inspecting; air equipment, lubricator and injector work; removin grinding, bolting and breaking of all joints on superheaters; oxyacetylene, thermit and electric wel

          Award Number 19949 Page 5

                    Docket Number MW-19869


          work generally recognized as machinist's work; the operation of all machines used in such work, presses and bolt threaders using a facing, boring or turning head or milling apparatus; and all recognized as machinist's work."


From our study of the above rule, and the whole record, we find no reason for altering our conclusion that the disputed work belonged to the Maintenance of Way Employees. Moreover, it appears that a series of Second Division Awards have ruled adversely to the Machinists on the very work under consideration here. See Second Division Awards 1110 (Thaxter), 1808 (Carter), 2250 (Carter) 3544 (Bailer), and 3363, 3364, and 3365 (all Stone).

 By reason of the foregoing we conclude that the Carrier is obligated to permit the work to be pe the rights of the third party Machinist Organization affected by the dispute, in accordance with the Supreme Court mandate in T-C. E. U. v. Union Pacific R. Co., 38 US 157 (1966). We shall sustain the claim in accordance with this opinion.

        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


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

        That the Agreement was violated.


                      A W A R D


        Claim sustained in accordance with opinion.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
        Executive ecretary


Dated at Chicago, Illinois, this 28th day of September 1973.

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