(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:



(1) The Carrier violated the Agreement when it assigned other than Maintenance of Way welders to perform welding work on a Pettibone-Mulliken Speed Swing on March 30 and 31, 1972 /System File MW-72-4 (PTRA)/

 (2) Welder L. R. Tillery be allowed eight (8) hours' pay at his straight time rate and eight (8) hours' pay at his time and one-half rate because of the violation referred to within Part (1) of this claim.

 OPINION OF BOARD: The MofW Employes assert that, on ?larch 30, 1972 and
 Good Friday, March 31, 1972, the Carrier used a machinist to perform welding on a machine assign and qualified to perform the welding, and that Claimant should now receive pro rata pay for March 30 and time and one-half for Good Friday, :larch 31, 1972.

 The Employes stated on the property that welding on Mofa machines has always been done by MotW welders. The Carrier's response on the property was that there it did not agree that welding on equipment belonged to any one department inasmuch as Carrier had we property; that the welding and repair of equipment falls in the category of machinists' work; and th had the machinist do the welding which consumed approximately twenty (20) minutes. The Carrier's Submission to this Board states the Carrier's position differently. The was taken to the shop where a Roundhouse Machinist-Welder was used to do welding work on the machine, and that such had occurred on previous occasions; that no work was performed on March 31, 1972, Good Friday; and that the claim cannot prevail because the MofW Scope Rule is a general one, and there has been no showing that MofW employes performed the disputed work to the exc


Two of Carrier's defenses have been challenged as not having been raised on the property. We find on the record that the defense concerning no work on :larch 31 was raised by Carrier's assertion that the work consumed no therefore consider this defense. However, the Carrier made no reference on the property to the gener the exclusivity doctrine and, consequently, this defense is not properly before the Board.

 The remaining defenses by Carrier raise the question of whether the MofW Employes have an agreement right to the disputed work. The Employes contend that Award 19949, involving the same issue and the same parties, has resolved this question in favor of the MofW Employes. We concur. In that Award repair work being performed by MofW Employes on MofW roadway equipment was claimed by the Machinists, whereupon the Carrier unilaterally transferred the work to the Machinists. In adjudicating the ensuing MofW claim agreement, this Board concluded that repair work on equipment within the MOEW Department belonged to MofW Employes. The welding work in dispute here is repair work on equipment within the MofW Department. Thus, the issue and the parties in the instant dispute are the same as in Award 19949 and we shall therefore sustain Part 1 of the claim. In respect to Part 2 of the claim we note that the Carrier, as previously indicated, did not directly challenge the monetary amount of the claim on the property by making any express contention that no work was performed on March 31; however, th challenged such monetary amount by its statement that the work consumed only twenty minutes. We believe it would be hyper-technical to rule that this was not a challenge to the Employes contention that the welding entailed two days of work, especiall points out that March 31 was a holiday and that, so far as its records reflect, no work was performed on the holiday by either Machinists or MofW Employes. Accordingly, we shall sustain the claim for March 30, 1972, and deny the claim for March 31, 1972.

        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 Railway Labor Act, as approved June 21, 1934;
                  Award Number 20258 Page 3

                  Docket Number MW-20213


That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an
        The Agreement was violated.


                  A W A R D


Part 1 of the claim is sustained. Part 2 of the claim is sustained in part and denied in part as per Opinion.

                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By 'rder of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 31st day of May.1974.

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