(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood
 of Railroad Signalmen on the Texas and Pacific Railway Company:

 Carrier should pay the following named members of Signal Gang 319 an additional payment of twenty-five (25) hours each at time and one-half their respective straight time hourly rates, account signal work denied them and assigned to an outside contractor in October 1971 in violation of the Scope and Rule 62 of the Signalmen's Agreement.







OPINION OF BOARD: This claim demands 25 hours for each of six named
 Claimants because an employe of a subcontractor, Summers Brothers, Inc., performed ten hours work moving earth and laying conduit in the installation of a highway crossing signal on Carrier's tracks near Grosse Tete, Louisiana. The employees assert that this constituted a violation of the Sc Agreement.

 The Scope Rule of the controlling Agreement reserved the work of installing highway crossing protective devices to the Carrier's employees covered by the Agreemen
Carrier's position, as summarized in its Rebuttal Statement to our Board, is as follows: The movement of large quantities of earth and the placement of conduit need not be performed by hand labor; the use of a special piece of earth-moving equipment to perform the work here in question is work which, if performed by railroad forces, would be assigned to Maintenance of Way employes; and the outside contractor was directed only to report for specific instructions to the Claimant Foreman (in effect this latter point amounts to a defense of entrapment).


We quite agree with Carrier that hand labor need not be used to the exclusion of machinery. This approach, however, begs the basic question herein concerning what human labor was in fact used. Where, as here, the hands on the controls of a machine produce the same end results as hands on a shovel would have produced, viz installation of highway crossing signals, this work remains under the Scope of the Agreement.

 We do not accept the contention that the work in question would necessarily be assigned to Maintenance of Way employes, if performed by railroad forces. The m
We have noted Carrier's contention before our Board that in several instances in recent years similar work has been similarly performed at other places. The ins raised during handling on the property and are therefore not properly before us. Similarly, Carrier's entrapment defense was not placed in issue on the property and when raised for the first time before us, comes too late.

 On all of the facts and circumstance herein we find that based on the facts peculiar to this record the claim must be sustained. However, the record of handling on statement shows that the labor involved amounted to ten (10) man hours. Accordingly, we will allow Claimant's ten (10) hours pay in the aggregate at the Signalmen's rate.



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






        Claim sustained to the extent indicated in the Opinion.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 13th day of December 1974.

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