The record does not show that these claimants sustained pecuniary damage because of the violation. It shows that they worked full time on that day, and does not indicate that overtime would have been necessary or that the claimants would have been entitled to such overtime. Claim 2 should therefore be denied."

AWARD 4086

The electrical workers claimed "one four hour call" because a supervisor performed work exclusive to electricians. Referee Johnson denied the claim because there was nothing in the record to show that, had the claimants been used, they would have received extra pay.

"... Each claimant worked and was paid for the day to which his part of the claim relates, so that he can have sustained no financial loss. There is no contention that the circumstances were such on any of the six occasions that an additional telephone maintainer would have been necessary if the supervisor had not performed the item of work claimed, and no claim is presented by such other telephone maintainer. The claims must be denied.

Claims denied."

As the board has said in a number of cases, the union's claim must be denied. The claimants were on duty and under pay during the claim period. There is no showing that any would have been called to work at overtime. None of the claimants suffered loss.

V. SUMMARY AND CONCLUSION

The Railway Labor Act requires the division to give third party notice to the Brotherhood of Maintenance of Way Employes and Michael Fusco because they may be adversely affected by an award. In addition, as the courts have said, the board must read the sheet metal workers contract in light of the maintenance of way contract.

There is a time limit defect in this case. The union failed to present its claim within sixty days of the date of the occurrence on which it is based. As management has shown, the claim is not a continuing claim. As provided by article V of the August 21, 1954 agreement, it is barred.

Even if the claim had been presented within the time limit, it would not be valid. Management has shown that, contrary to what the union has argued, sheet metal workers have not repaired roadway equipment exclusively at the twenty-sixth street shop. Moreover, even if the work had been exclusive to sheet metal workers at this one point, the claim still would not be valid. As the Adjustment Board has said, to prove a violation of the classification of work rule, the union must show that the work is exclusive to sheet metal workers throughout the Illinois Central. As the union admits, this is impossible to prove. It concedes maintenance of way employes perform most of the roadway equipment repair work on the Illinois Central.

Even if the union had proved a violation of the sheet metal workers contract, the claim presented would not be valid. Each of the claimants were on

duty and under pay during the claim period. There is no evidence that, had
Mr. Fusco not been used, any claimant would have earned more pay than he
did earn.

(Exhibits not reproduced.)

FINDINGS: The Second Division of the Adjustment Board, upon the
whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

In the consideration of this dispute, we find it averred by Carrier at the
outset that the claim is barred by Article V of the Agreement of August 21,
1954, inasmuch as the action taken by Carrier concerning which complaint
is made occurred May 16, 1963, and the instant claim was not filed until
October 14, 1963. Countering this averment the Organization contends that
here the dispute concerns a continuing claim within the meaning of Article
V. However, in the view we take of the merits of this dispute, it is unnecessary
to examine and decide the time limit defect asserted by Carrier.

Although Employes' claim does not specify what type of work was taken
"from water service mechanics” and assigned to another craft, it may be
inferred that it was work such as would be performed by a Motor Car Repair-
man Helper. Then later from Employes' Statement of Facts, it develops that
such was the case and that an employe named Michele Fusco, previously
classified and working as a "Water Service Repairmen Helper" within the
Sheet Metal Workers Organization at Carrier's Twenty-Sixth Street shop in
Chicago, had been transferred to "Motor Car Repairman Helper" with a new
craft designation in the Department of Maintenance of Way and had continued
the same work as formerly at the same location. The Employes claim that this
was "a violation of existing practices and Agreements."

While the record here would indicate that in recent years a considerable
amount of the roadway equipment repair work at Carrier's Twenty-Sixth
Street shop had been performed by water service repairmen of Claimant's
Organization, nevertheless this work had not been exclusively accomplished
by said Sheet Metal Workers at said shop, whereas at most points over
Carrier's system it had been performed by employes of the Maintenance of
Way craft, something which was readily admitted by General Chairman King
of the Sheet Metal Workers International Association in his letter, dated April
6, 1965, (Carrier's Exhibit O), wherein he said: "We do not deny that at most
points this is true." And it should be borne in mind, as stated in Second
Division Award 4971, . . . "the application of the general provisions of an
Agreement are system-wide except as otherwise provided." See also Third
Division Award 7031 cited in Second Division Award 2255.

Rule 57 of the applicable Agreement cited by Employes says nothing
which in any way covers repair of roadway equipment, unless, as Employes

seem to say, such work can be included in the final words: "and all other work generally recognized as water service repairmen's work." To this we cannot subscribe. But further, Claimants insist, and appear to place paramount reliance upon the allegation, that Carrier has assigned the maintenance and repair of roadway equipment at said Twenty-Sixth Street shop to Water Service employes throughout the past many years and thereby has established an accepted practice. This, the Claimants have the burden of proving. As was said in Second Division Award 4990: "the Petitioner has the burden of proving the work complained of was exclusively assigned to or reserved to the Claimants by Agreement or by custom, tradition and practice." A careful examination of the evidence in the record does not permit us to say that Claimants have sustained this burden as to such work at said Twenty-Sixth Street Shop and further we find that it cannot be said as to other points throughout Carrier's system. See Second Division Award 4971.

In our considered opinion, we do not believe this claim can be maintained. It should be denied.

Claim denied.

AWARD

NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISON

ATTEST: Charles C. McCarthy

Executive Secretary

Dated at Chicago, Illinois, this 28th day of April, 1967.

Keenan Printing Co., Chicago, Ill.

Printed in U.S.A.

Award No. 5152

Docket No. 4970

2-C&NW-MA-'67

NATIONAL RAILROAD ADJUSTMENT BOARD

SECOND DIVISION

The Second Division consisted of the regular members and in
addition Referee Ben Harwood when award was rendered.

PARTIES TO DISPUTE:

SYSTEM FEDERATION NO. 12, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Machinists)

CHICAGO AND NORTH WESTERN RAILWAY COMPANY

DISPUTE: CLAIM OF EMPLOYES:

1. On August 31, 1964, the Chicago and North Western Railway Company in violation of the Agreement, assigned Machinist Helper D. L. Clark to position of Machinist operating a burnishing lathe in Clinton, Iowa Machine Shop.

2. That accordingly, the Chicago and North Western Railway Company be ordered to compensate Machinist George Seely, Clinton, Iowa, eight (8) hours at Machinists' pro rata rate and one-half from August 31, 1964, until the Agreement is complied with.

EMPLOYES' STATEMENT OF FACTS: Mr. George Seely was a machinist employed by the carrier on the 7:00 A. M. to 3:30 P. M. shift at Clinton, Iowa. Machinist Seely, hereinafter referred to as the claimant, is shown on the seniority roster published on July 1, 1964, as number 7 on the machinist list.

On August 31, 1964, Machinist Helper Don L. Clark was placed on a machinist's position with hours of 3:30 P. M. to midnight, with one-half hour for lunch. Helper Clark was hired on August 21, 1963, and is shown as number 13 on the Machinist Helpers' seniority roster.

Machinist Helper Don L. Clark was not a machinist nor was he eligible for upgrading under the provisions of the memorandum of agreement between the organization and the carrier dated August 11, 1953.

On August 24, 1964, Superintendent Powers wrote jointly to General Supt. Weatherall and the undersigned, requesting approval to advance Helper Clark. Since Mr. Clark had only one (1) year of service, I could not approve him to be advanced as to do so would have violated the agreement. I so informed Supt. Powers by letter dated August 25, 1964. Notwithstanding these

facts, Supt. Powers placed Mr. Clark on a machinist position effective August 31, 1964.

Protest and claim was filed and was handled in accordance with the agree ment with all carrier officers authorized to handle disputes, including Mr. T. M. Van Patten, the highest designated officer of the carrier.

Conference was held on April 28, 1965. My reply dated August 19, 1965, is attached, together with former Vice President-Personnel, Mr. G. F. Stephens' letter of May 18, 1963, also letter from United States Department of Labor Representative to Mr. Van Patten dated January 7, 1963, and Mr. Van Patten's reply dated Jan. 16, 1963, identified as Exhibit H, pages 1 through 7.

I replied to Mr. Van Patten on October 25, 1965.

The agreement effective July 1, 1921, as subsequently amended, is controlling.

POSITION OF EMPLOYES: It is respectfully submitted that the carrier violated the agreement, particularly rule 61 of the agreement, captioned: "Machinists' Qualifications," reading:

"Any man who has served an apprenticeship or has had four years' experience at the machinists' trade, and who, by his skill and experience, is qualified and capable of laying out and fitting together the metal parts of any machine or locomotive, with or without drawings, and competent to do either sizing, shaping, turning, boring, planning, grinding, finishing or adjusting the metal parts of any machine or locomotive whatsoever shall constitute a machinist."

The carrier also violated Rule 29 of the agreement reading in pertinent part:

"None but mechanics and apprentices regularly employed as such, shall do mechanics' work as per special rules of each craft.”

Mr. Clark is not a machinist mechanic within the meaning of the aforesaid rules. His assignment by Supt. Powers to perform machinists' work starting August 31, 1964, by Shop Supt. Powers constitutes a violation of the agreement.

The advancement agreement authorized the use of machinists' apprentices and helpers to perform machinists' work under certain conditions. The pertinent part of that agreement provides that:

"MEMORANDUM AGREEMENT BETWEEN THE CHICAGO
AND NORTH WESTERN RAILWAY COMPANY AND INTER-
NATIONAL ASSOCIATION OF MACHINISTS.

"It is hereby agreed that when bona fide machinists are not available to fill vacancies for machinists under provisions of Rules 18 and/or 26 of the current Federated Crafts' agreement, or the carrier is unable to hire same, such vacancies may be filled, after they have been bulletined under Rule 16 of the agreement, by and in the following order of upgrading apprentices and machinist helpers, at their seniority point, until such time as the vacancies may be filled under Rules 18 and/or 26 or the hiring of bona fide machinists.