SPECIAL BOARD OF ADJUSTMENT N0. 570


        ESTABLISHED UNDER AGREEMENT OF SEPTEMBER 25 1964_


Pa!: ties to System Federation No.97, Railway Employes' Department,
 Dispute: AFL-CIO (Electrical Workers)

                      And


                            The Atchison, Topeka And Santa Fe Railway Company (Eastern Lines)


          Dispute: That under the terms of the Agreement dated September 25, 1964, effective November 1, 1964, the Atchison, Topeka ana Santa Fe Railway Company, Eastern Lines, erred and violated the terms of said agreement when they contracted the removal of eleven (11) miles plus seven hundred and forty (740) feet of poles, down guys, cross arms, line hardware and wire from this 11 miles plus 740 feet of Company property.


Findings:
 In September, 1964, the carrier was granted authority by
 the Interstate Commerce Commission to abandon a portion of its Lawrence
 (Kansas) District line, extending from Mile Post 3.0 near Lawrence to
 Mile Post 14 plus 730 feet near Baldwin, Kansas, a distance of about 11.14
 miles. Pursuant to said authority, the carrier abandoned the line,
 effective as of November 15, 1964. Thereafter, it subcontracted to the
 firm of Bob Hussey, Inc., Oklahoma City, Oklahoma, the dismantling of the
 abandoned tracks and the removing of the communication lines. The latter
 work included the removal of approximately 400 poles, 400 crossarms,
 58,820 feet of N 8. iron wire, sod 365>720 feet of cooper wire as well as
 miscellaneous guys and other poleline material. The subcontractor began the
 work on April 20, 1965, and completed it on August 24, 1965.

 The claimants, division linemen L. L. Isaacs and B.L. Robertson, lead lineman W . L. Morris, lineman J. L. Jones, ano apprentice 'lineman R.K. Sowerby were employed in the carrier's Communications DeDartment at all times here relevant. They filed the instant claim in which they contended that the carrier violated Article II of the September 25, 1964 Agreement (hereinafter referred to as the "Agreement") when it subcontracted the removal of the communication lines in question. They requested compensation in the amount of 217 hours each at the applicable overtime rate. The carrier denied the claim.

 In support of the instant claim, the claimants contend that, notwithstanding the abandonment of the line under consideration, the carrier retained ownership as well as sole control of the property and the
 .- S6~5713
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                                                              A

        appurtenances thereon. They argue that the removal of the communication lines was work covered by Rule 119 of the applicable labor agreement betwezn the carrier and the organization and thus subject to the limitations provided for subcontracting in Article II of the Agreement.


        In defense of its position, the carrier asserts that the aiib~ contracted work was performed after the line vas abandoned and after the property vas no longer a part of its operations. It submits that the work performed by the subcontractor was outside the purview of the prbri§iona of the applicable labor agreement as well as of Article II of the Agreement.


        The basic question presented here is whether the subcontracting of the work in question was subject to the limitations placed upon a carrier's right to subcontract by Article II of the Agreement . For the reasons hereinafter stated, we are of the opinion that the answer is in the negative.


        1. The Introduction to Article II of the Agreement provides that "the work set forth in the classification of work rules of the crafts parties to this agreement will not Ie contracted except in accordance with the provisions of Sections i throurt: 4 of this Article II." Thus, an indispensable prerequisite tc the application. of Article II is that the vnrt -~iFt fall within the Scope of the applicable work rules. A careful review of the evidence on tre record considered as a whole has convinced us that the work here in dispute did not fall within such scope.


        The claimants argue that the removal of the communication lines 1n question is specifically covered by Rule 119 of the applicable labor agreement, effective August 1, 1945. We disagree. In order properly to evaluate said Rule, it must be read together and coordinated with the Preamble to the labor arreenent which defines the scope thereof and thus qualifies the.Rule. See: Award 4129 of the Second Division of the National Railroad Adjuctme:t Board and cases ci,ed therein. The Preamble reads, in pertinent tart, as follows:


                  "'his hereement ohall apply to employees of these Carriers who perform work outlined herein in the ... Communications Department..."


                The language of the Preamble is neither clear nor unambiguous:

        $tausible contentions can, therefore, be made for different interpretations.

        A fundamental rule generally observed by the courts and industrial arbitra

        tors in the interpretation of a labor agreement the wording of which is

        ambiguous is to ascertain and give effect to the a77necent intent of the

        parties. The rationale underlying this rule is that the 1, -a preaumea that

        the parties understood the import of the agreement and that they had the

        intention which its terms manifest. However, it is not within the authori

        ty of a court or an arbitrator to look outside of the written instrument,


                              _p_

                                              'g/+ 570 . is


to guess or conjecture the intention of the parties and then carry out tnat possible intention regardless of whether the instrument contains sufficient language to express it. See: Frank Elkouri & Edna A. Elkouri, How Arbitration Works, Rev. Ed., Washington, D. C., BNA Incorporated, 1960,

 ' pp. 20 0 and references cited therein.

          Applying the above rule to this case, we have reached the following conclusions:


          It is a matter of common knowledge requiring no further aiscussion that a labor agreement between a carrier and the representative of its enDloyees n~rnally relat~q only to w,rk ^erform-? ir, connection with tile maintenance of an operating railroad. The parties are, of course, free to extend the scope of the labor agreement by mutual consent. But such an understanding must reasonably be made known in the agreement. The record befog°_ us is devoid of any evidence or indication that the parties to the labor agreement of August 1, 1945, intended to extend its coverage beyond its normal and traditional scope so as to cover Work performed on an abandoned and non-operative part of the carrier's property. To read into the Preamble such an intention would amount to pure guesswork. 3·'oreover, the fact that the carrier retained ownership of the abandoned line ana the apuurtenances thereon is immaterial. The answer to the question of whether the work described in the scope rules is actually covered thereby does not depend on ownership but on the purpose for which the work is performed. In the instant case, the purpose contemplated by the parties to the labor agreement no longer existed. If they intended to cover work on an abandoned and inoperative Dart of the carrier's operations, they shouia or would have indicated their intention in the written instrument. But they did not (~do this and we fail to see any such intention on their part. See: Awards 6910 and 7765 of the Third Division of the i1ational Railroad Adjustment Board.


          In summary, we hold that the work here in dispute was not covered by the scope rules of the applicable labor agreement, including specifically Rule 119 thereof. It follows that the subcontracting in question. was not subject to the limitations prescribed by Article II of the Agreement. Accordingly, the instant claim is without justification.


          2. In view of the foregoing conclusions, it becomes unnecessary to rule on the carrier's further arguments and we express no opinion on the validity thereof.


                                  AWARD


                    Claim denied.


          ADOPTED AT CHICAGO, ILISNOIS, THIS th DAY OF JANUARY, 1966.


              G

              Referee


          Carrier Members. Employee Members

                                - 3 -

                                - S.B.A. 570

                                      Award No. 12


              SPECIAL BOARD; ~OF ADJUSTMENT N0. 570


              AGREEMENT UNDER

              A11REE1'I4VIT OF SE~5, 1964


            DISSENTING OPINION OF EMPLOYEE FEVERS


Thm opinion of. the majority members comprising Special Board of Adjustzant No. 570 in Award 12 rradivg in pertinent purta

            pthat-the work here in dispute was not covered by the scope rules of the applicable labor agreement, including specifically Rule 119 thereof."


is without foundation.

 The Preamble of the applicable labor agreement, effective August 1, 1945 reads in pertinent part:

            "This Agreement shall apply to employes of these carriers who perform work outlined herein in the - - - - - - Communications Department - - - - - - under jurisdiction of the Operating Department."


and makes it abundantly clear that P1.1 communications' work, performed on the property of the carrier which is specifically set forth in the agreement and over which the carrier has control .aid the power to assign to its employee, is the contractual work of its employes covered by the agreement.

 Rule ?19 of the applicable labor agreement contains the following pertinent languages

              e(a) - - - - - - dismantle inside and outside com=ication plant - - - - - -9 "


              p(b) - - - - - - dismantle telephone, telegraph or teletype apparatus, - - - cad other conaunication plant eqroip:mnt, apurtewncos or associated sslring, - - - - - --"


              "(c) - - - - - - diamntle pole lines and supports, wires and cabl©a, conduits -

Sl~ 570 - Aw~ which reveals beyond any question of doubt that the work involved

 is

 which reveals beyond any question of doubt that the cork involved in this dispute in specifically covered by the terms of the agreement.

 The records as subud.tted by carriers reveals that the work here `Y'

 involved seas perfarcsd on carrier's property and that carrier tad
 control over the cork and the poorer to assign it. The record
 submitted by the eafplages ah"a that the work here itwclppsi 1U
 coacrssd t°,y the ap~,.llc.3alo labor agresrantD aWGJf$og 3490
 S.ha C1amPl ficsats on of kiora rule. I

 In tins of tks9 above stated it =at tallaa that the subcontracting of the cork here involved, vas subject to the limitations preacribod in Article II of the September 25, 1964 Agree=nt., the first paragraph 02 cshieh reedss '

        °Thg work set forth in the clas;aifieation of cork rules of the crafts parties to this agreerWnt ni.ll not ha contracted except in accordant: uith the provisicna of Sections I through 4 of this Article 11*11


The a'tetem-ent of the majority readings.

 "It is a natter of cosmn -"oxledge requiring no further discussion that a labor agxbe-_mnt between a carrier end the representative of its enplapeea norr:~Ilp relates a;s~y to stork performed in connection with the iaaintenanco of an operating railroad."

 overlooks the feat that the instant agrees:ent specifically covers
 the work and that the agreenrent contains no exceptions. So called ·
 "common knoxlec?32tt cannot cegeredda the clear and specific terms
 of the agree-ment.
 The findings sand conclusions of the sris3oritp of the Board am ill
 advised end do violence to the spirit and p:;xToae of the agroementa
 cad eocar::inalyt wa dissent.
 C) Ja=a E. lost k_/
 J
 ,YUn'~'b o Y.w.~a~
 Labor Fzmbsra.of Spacial Board of
 Adjatituent No. 570
 Ckiecgos, Illinois
 January 25, 1 S66