The Second Division consisted of the regular members and in
addition Referee Thomas A. Burke when the award was rendered.
SYSTEM FEDERATION NO. 150, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
EMPLOYES' STATEMENT OF FACTS: At the time of the violation the carrier maintained a force of four (4) carman painters on the first and third shifts, shown on the force statement, consisting of two seven day assignments, one on the first shift with the working hours 8 A.M. to 4 P.M., one on the third shift with the working hours 11 P.M. to 7 A.M., one six day assignment on the first shift with the working hours from 7 A.M. to 3 P.M. and one regular relief assignment to work on rest days of six and seven day assignments, all jobs having two consecutive rest days and twenty minutes for lunch.
The carrier assigned bridge and building painters to paint three metal stock bins 15' 4" long, 3' wide and 7" high; also a number of stock bin pans 171/2" long, 6" wide with i/2" sides in Section A of the Stores Department on October 8, 10, 18, 19, 22 and 24, 1956. These bridge and building employes worked a total of fifty-six (56) hours on this assignment, 12 hours on October 8, 12 hours on October 10 and 8 hours on October 18, 19, 22 and 24, 1956. These bins and pans are portable and in no sense a part of a bridge, building or structure.
Carman painters, hereinafter referred to as the claimants, were available to perform this work.
Here we have three cases covering the same organization with The Cincinnati Union Terminal Company and the resulting three awards all stating that the carmen's organization does not have the exclusive right to perform the work complained of in claim. In Award 2361 stated in part "since we have held they (cartnen) did not have the exclusive right to build these platforms, we do not think they had the exclusive right to paint them." Emphasis by carrier. Also see Awards 1512, 1691, 1764.
The practice of B and B employes doing this work has been in effect for over 21 years and was in effect prior to September 1, 1949, effective date of our controlling agreement.
We are submitting as carrier Exhibit #1 list of dates on which B and R painters performed work in territory in which carmen painters work day in and day out.
A practice of over 21 years standing certainly had the acquiescence of all parties concerned and the carmen by neglecting to take the proper action in opposition of the practice have implied consent thereto, consequently practice should not be disturbed.
The three denial awards by the Second Division, namely Awards 2360, 2361 and 2363 with same organization and this carrier is conclusive evidence that there has been no violation of Rule 73 as claimed by the claimant organization.
The present claim is without merit and carrier respectfully requests the Second Division to deny claim in its entirety.
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.
The Carrier assigned Bridge & Building employes to paint stock bins in Section A of the Stores Department on October 8, 10, 18, 19, 22 and 24, 1956.
The claimants contend that this is Carmen's work and should have been assigned to them, under Rule 73 (a) of the Agreement. 2952-7 373
The same claim involving the same parties, was considered by this Division in Awards 2360, 2361 and 2363. In each award the claim was denied.
The language just quoted from Award No. 2360 is pertinent and applicable here.
The claimants seek to distinguish this case from Awards 2360, 2361 and 2363 and they rely upon Employes' Exhibit A, contending that this order of the Master Mechanic places the Stores Department under the jurisdiction of the car and locomotive department. The record does not bear out this contention. While the carrier did not specifically deny that the Stores Department is under the jurisdiction of the car and locomotive department, there is nothing in the record to support the contention of the employes.
We do not find that Exhibit A in and of itself demonstrates that the storeroom was transferred to the jurisdiction and direct supervision of the locomotive and car department.
In view of the foregoing we have come to the conclusion that the claim here made is without merit.
The statement in the findings on Award No. 2952 that the language quoted from Award No. 2360 is pertinent and applicable to the instant cases is misleading for the reason that the language quoted refers to Award No. 1656 but makes no mention of the fact that the findings in that award stated that ". . . all painting of moveable supply bins, work benches, furniture and the like, is the work of carmen as against the claims of Bridge and Building forces."
In a futile attempt to justify a denial award in each of the instant cases it is stated in the present findings that ". . . there is nothing in the record to support the contention of the employes" that the Stores Department is under the jurisdiction of the car and locomotive department. This statement is made in spite of the fact that the record in each case contains a bulletin put out by the carrier under date of August 27, 1956 showing that, effective September 1st, 1956 the Stores Department would come "under the Supervision and Jurisdiction of the Master Mechanic." The master mechanic, as anyone in the railroad industry is aware, has charge of the Locomotive and Car Department, thus the aforementioned bulletin automatically placed the Stores Department within the Locomotive and Car Department.
Under the facts of record and Rule 83(a) of the controlling agreement the instant claims should have been sustained.