to the telegraphers at the subject location, who hold seniority under the Carrier's agreement with the Order of Railroad Telegraphers. The Agreement between the two parties to this dispute "Effective June 1, 1946, excepting amendments which became effective on various dates up to May 1, 1952," together with supplements, amendments, and interpretations thereto is by reference made a part of this Statement of Facts. POSITION OF EMPLOYES: At the outset, we wish to point out and emphasize the perfunctory manner in which the Carrier handled this dispute on the property. For instance, it was not until the final stages of appeal that the Carrier made any attempt whatever to justify its assignment of the subject drawbridge operator's work to the telegraphers. As evidence thereof, all Carrier correspondence in connection with this dispute is hereinafter quoted verbation: "January 11, 1962 Mr. F. M. Bushong Asst. General Chairman Brotherhood of M. of W. Employes 2012 Lane Avenue Elkhart, Indiana Dear Sir: Yours of January 5, 1962, referring to the 7-day position of Drawbridge Operators on Bridge No. 81⁄2, Indiana Harbor, Indiana. I must at this time deny your request that these positions be restored. Yours very truly, /s/ Wm. Baerthlein Wm. Baerthlein "February 27, 1962 File: Br. 81⁄2-Western-IA Mr. S. R. Freccia, General Chairman 16 Court Street Brooklyn 1, New York Dear Sir: Referring to your letter of January 30 regarding your claim involving a situation where, at 7:00 A. M. CST on December 16, 1961, we abolished all positions of drawbridge operators on Bridge 81⁄2Western, Indiana Harbor, Indiana, and transferred the duties to the telegraphers not covered by your agreement. "I have studied your claim that the drawbridge operators should be restored, and I feel the claim should be denied. Very truly yours, /s/ R. F. Lawson R. F. LAWSON "June 6, 1962 Mr. S. R. Freccia, General Chairman Brotherhood of Maintenance of Way Employes 610-11 Montague Court Building 16 Court Street Brooklyn 1, New York Dear Mr. Freccia Please refer to your letter of March 21 concerning the drawbridge operators on Bridge 81⁄2, Indiana Harbor, Indiana. You have stated that your Scope Rule has been violated because the work being performed is drawbridge operators' work traditionally and customarily recognized as belonging to such employes under your agreement. I do not agree with this position. It is true that drawbridge operators are listed in the Scope Rule of your agreement, but there is nothing in that or any other rule of your agreement that limits or restricts the performance of any functions connected with the handling of drawbridges to employes covered by your agreement. Your appeal is, therefore, denied. Very truly yours, /s/ L. B. Fee" The Carrier frankly admits that, prior to December 16, 1961, the subject work was exclusively assigned to an performed by drawbridge operators holding seniority within the scope of the subject agreement. This admission is clearly reflected in the first quoted notice in our Statement of Facts. Rule 1 of the controlling agreement, insofar as it is pertinent hereto, reads: "These rules govern the hours of service and working conditions of the following classes of employes in the Maintenance of Way Department: TRANSPORTATION DEPARTMENT Highway and Non-Interlocked Crossing Watchmen Lampmen (except those covered by other agreements) NOTE: Nothing in this rule requires the use of employes of the above listed occupations on properties where such occupations are not in existence." Attention is specifically invited to the fact that drawbridge operators and tenders are clearly included within the scope of this agreement. Certainly it must be conceded that, when the Carrier agreed to include drawbridge operators and tenders within the scope of this agreement, the usual and customary work of such classes of employes would also be encompassed within the scope of this agreement. If such was not the intent of this agreement, then there would be no purpose for including those classifications within the subject agreement. As this Division held in Award 2701: "The scope rule does not specify the work which falls within the agreement. That it was intended that certain work did belong to Maintenance of Way employes cannot be questioned. If no work was reserved to Maintenance of Way employes by the agreement, there would be no reason for a contract at all. For if no work is thereby reserved, the Carrier could by the simple expedient of assigning the work to others defeat the contract itself. In the absence of a specification of the classes of work reserved by a collective agreement, we are of the opinion that it reserves all work usually and traditionally performed by this class of employes who are parties to it. Clearly this was the intent of the parties, otherwise a specification of included and excluded work would have been required in the scope rule of the agreement." Other awards which held to a like effect include Awards 323, 2812, 4833, 5237, 5447, 6305, 7050, and 7806. Also please see Third Division Awards 1314, 10871 and Fourth Division Award 1388, which held: AWARD 1314:-"From what has been said it is apparent that the two outstanding purposes of agreements are to insure to a craft those positions which fall within the craft, and to insure to the members of that craft the work concommitant to those positions in order of their length of service, for work is to the position what seniority is to the employe. Those two principles are the top stone and keystone of the arch. Work is attached to and is an attribute of a position; seniority attaches to and is an attribute of the person. In consequence of what has been said it follows that 'positions' which are subject to the agreement are protected to the craft by the agreement, and since 'work' is of the essence of a position such work which is the manifestation of the position and the identity of it is likewise protected to the craft." AWARD 10871: "It cannot be disputed that the primary purpose of a collective bargaining agreement is to preserve to the Organization and its members the positions and work of the particular craft involved and this Board is committed to the principle that the work of positions covered by an Agreement belongs to employes subject to that Agreement and may not properly be performed by employes of another craft. See Award 323. This award has been consistently followed down through the years." "AWARD 1388: (Fourth Division)-"The argument is often ad vanced by carrier representatives that where, as here, the contract does not define yardmaster duties and merely lists positions covered thereby, there is no exclusive reservation of the work. We disagree. Unless an exclusive reservation is implicit under the Scope Rule of the kind of agreement before us, then the agreement itself is meaningless and without force or effect. (See Fourth Division Awards 445, 1040, 1332; Third Division Awards 757 and 1314). As we pointed out in our recent Award No. 1343, to hold that the Scope Rule does not confer an exclusive right to perform yardmaster work by those covered thereby would render the whole agreement nugatory." We also wish to remind this Division of its many holdings that scope rules, like that involved here, cover and encompass all of the types and classes of work which were being performed by employes at the time of the negotiation of the agreement. See, for example, the following principles. AWARD 382:-"There can be no question that the use of locomotive engineers in place of maintenance-of-way employes in the operation of these weed-burning machines was a direct violation of the express terms of the agreement of May 25, 1931; and it is also clear that even apart from this agreement the work involved here has been recognized by custom and practice to be work belonging to maintenance-of-way employes and was not infringing upon the work of any other class of employes." AWARD 4491:-"The Scope Rule of the Agreement herein involved embraces all work which employes therein included usually and customarily performed at the time of the negotiation and execution thereof. * AWARD 4729:-"Employes assert . . . that the Scope Rule of the Agreement is being violated by permitting switchmen to perform services as highway crossing watchmen. The Agreement under the Scope and Seniority Rule clearly includes positions of watchmen, and gatemen and signalmen at non-interlocked railway crossings. There is a seniority roster maintained for employes in such service. Of course, such seniority rights as they may have among themselves are subordinated to the rights of incapacitated employes under Rule 24. Rule 24 in itself is a clear indication that the work of track, bridge, tunnel and highway crossing watchmen, etc. comes within the Scope of the Agreement, for if it were not covered, there would be no need to agree upon an exception to the general rule of promotion and seniority in appointment to the positions performing such work. It appears, therefore, that the Agreement clearly contemplates the inclusion of the work as performed under the circumstances appearing in this Docket, in its Scope. That being so, the long acquiescence of the Employes in the assignment of work to employes outside of the Agreement cannot defeat a claim that the Agreement is being violated. AWARD 4833:-"The work in question was clearly that which was customarily and traditionally performed by maintenance of way employes. It was therefore, within the scope of the Agreement." AWARD 4846:-"We hold, therefore, that the general maintenance of crossing gates belongs to maintenance of way employes. This is supported by Rule 36 (a), a current agreement which lists the positions of Gate Maintainers, and Gate Maintainer's Helpers. AWARD 5747:-"The Scope Rule of the parties' effective agreement covers Bridge and Building Subdepartment Foreman, Assistant Foremen, Mechanics and Helpers, which includes painters and masons. This Scope Rule embraces all work which employes of the class covered thereby usually and customarily performed at the time the contract was negotiated and entered into." AWARD 5872:-"The clear indication of these observations is that the Scope Rule in and of itself is a grant of rights to the employes covered by the Agreement which rights are secured to them so long as the Agreement is in force, and any infringement amounts to a violation. This as a general attitude toward the Scope Rule is supported by numerous Awards. It appears to be a correct analysis." AWARD 6063:-"Generally speaking a carrier may not contract out work embraced within the scope of its collective agreements. AWARD 6068:-"This scope rule does not purport to specify or describe the work encompassed within it. It sets forth the class of positions to which it is applicable. The traditional and customary work of these positions, generally speaking, constitutes the work falling within the Agreement. See Award 4516 of this Division." AWARD 6101:-"Even though the work is not spelled out in the Scope Rule, it has been assigned to employes whose positions are described in the Scope Rule. It has been the practice and custom to assign Clerks at the South Tacoma Shops to do the Clock watching. Past practice, custom, and tradition at the South Tacoma Shops have made the clock-watching work, work of the Clerks coming within the Clerks' Agreement. See Award 5404." In giving consideration to the principles enunciated in the aforequoted excerpts from awards of this Division, we respectfully request that this Division keep in mind the indisputable fact that, until December 16, 1961, the work of operating this drawbridge was exclusively assigned to and performed by employes holding seniority within the scope of the subject agreement and that it had never been recognized or considered as being encompassed within the scope of any other agreement. Rule 22(a) reads: "(a) Preparation of Roster: A separate seniority roster will be compiled for each class of employes in each seniority district and will be revised in January of each year. Rosters will show the names and dates of entry of employes into the service of the railroad and their seniority dates in their respective classes, EXCEPT that names of trackmen and laborers will not be included and their seniority rights shall not apply, except for displacement in force reduction, until they have been in continuous service of the company for more than 3 months, at the expiration of which time they will be given a seniority date from the date of such last employment. A copy of the roster will be furnished foreman of gang, a copy will be posted on bulletin |