(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CIAIM: "Claim of the System Committee of the Brotherhood

(1) The Carrier violated the Agreement when it refused to permit Crane Operator J. L. Eagan to displace a M.P. Crane Operator at Ellis, Illinois during January, February and March, 1976 (Carrier's File R 214-74/cc: 247-5050).

 (2) Mr. J. L. Eagan now be allowed-the difference between what' he would have been paid at the crane operator's rate and what he has been paid at the carpenter's rate during the period referred to in Part (1) hereof."

 OPINION OF BOARD: Carrier, Chicago and Eastern Illinois Railroad
 Company (C&EI), contracted out the work of heavy bridge reconstruction and maintenance to a Missouri Pacific Bridge gang, comprised of Maintenance of Way Employes. Missouri Pacific had acquired control of Carrier in 1968, but at the time the work in dispute was contracted out, the two carriers operated as separate corporate entities.

 The claim arose when the crane (BC-24) that claimant operated on the C&EI was transferred to the Missouri Pacific. At the same time,, another crane (% 35) was being operated on Carrier's property by a Missouri Pacific (MP) hoisting engineer, member of the MP Bridge gang to whom the bridge reconstruction work had been contracted. Petitioner contends that claimant, holding seniority as a crane operator with C&EI, should have been allowed to displace the MP hoisting engineer operating the %-35 crane on C&EI's property. Since claimant was not permitted to displace the %35 crane operator, he exercised his seniority to carpenter work, a lower-rated position. The claim is for the difference in pay between the carpenter's rate and what he would have earned as a crane operator, had not Carrier, Petitioner alleges, violated the Agreement. Petitioner holds that the violation


arose when Carrier denied claimant the right to displace the MP crane operator who, with no seniority on the C&EI, was used to operate a crane on the C&EI, in preference to claimant who held seniority rights as a C&EI crane operator.

 Petitioner's posture, in brief, is that claimant should have been permitted to exercise his seniority rights to displace a member of the Missouri Pacific System Bridge gang, to whom Carrier had contracted major bridge reconstruction work on Carrier's property.

 The record shows that Petitioner never denied Carrier's repeated statements that C&SI had long followed a patters and practice of contracting out major bridge reconstruction and similar large projects, including using the Missouri Pacific as a contractor. Also, C&EI never had a B&B gang for system-wide bridge reconstruction work or for building construction. (See Third Division Award 11465 involving the same parties.) Accordingly, we may accept such past practice as-established fact.

 The prior Organization General Chairman on the C&EI had concurred in the use of the MP System Bridge gang on the C&EI for Bridge Reconstruction projects with the understanding that no C&EI Bridge employer would be furloughed while the MP gang was on C&EI property.

 Carrier notified the current Organization General Chairman of the intention to subcontract the work involved in this instant case. The General Chairman rejected Carrier's proposal, without advancing any reason, but filed no claim protesting subcontracting the work to the Missouri Pacific until the removal of the crane from C&EI property to the Missouri Pacific.

 The Organization also cites the Scope Rule of its Agreement with Carrier. The Scope Rule is general in nature and this Board has ruled, too often to require citation, that a Scope Rule of the type herein involved does not grant exclusive jurisdiction to the employes covered by the Agreement to the work in question. To reserve and retain jurisdiction, the Organization has to show by history, tradition and custom, system-wide, that the employes for whom it is making the claim have customarily performed the work and have done so to the exclusion of others. No such showing has been made by the Organization which would establish such a right, in the record before us.
                    Award Number 22156 Page 3

                    Docket Number Z&1-22169


Petitioner has not challenged the propriety of Carrier's subcontracting the work. Such challenge would have fallen in light of the uncontroverted evidence of past practice of contracting out the type of work at issue in this case.

 Absent exclusive jurisdiction under the Scope Bile, and given the substantial evidence of the practice of subcontracting, not denied by the Organization, Petitioner's claim to a contractual right under the seniority rules to perform the work in question must fail. The seniority rules merely govern the order of assignment to work that is available to members of a craft under the Agreement. As previously noted, Petitioner has made no showing that the work of major bridge reconstruction has been reserved to it, or, for that matter, that such work has been performed by Carrier employes on Carrier property. Petitioner has not demonstrated a right to the work claimed. In essence, Petitioner's claim would enable claimant to exercise seniority among an outside contractor's work force (such as the MP Bridge gang) performing work on Carrier property. Claimant does not .have this right under the terms of the Organization's Agreement with this Carrier.

 For the reasons stated above, we must conclude that the claim lacks merit and must, therefore, be denied.

        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 not violated.

Award Number 22156 Page 4
 ' Docket Number MW-22169

                    A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

      ' By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 31st day of July 1978.