The Second Division consisted of the regular members and in
addition Referee D. Emmett Ferguson when award was rendered.
SYSTEM FEDERATION NO. 18, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Carmen)
POSITION OF CARRIER: The duties of millman under the carmen's craft includes the operation of power tools used for the cutting and shaping of wood to be used on locomotives, cabooses, freight and passenger cars.
There is no separate rostered classification of millman. The work belongs to rostered carmen in the carmen's seniority district.
The issue presented on the property in this dispute was whether or not it is permissive for the carrier to combine carman (including milling) work with that of wreck crane operator. The question has been decided by this Division adverse to employes' contention only recently. Second Division Award No. 2603 was "Denied" by Referee Curtis G. Shake on September 11, 1957.
Therefore, the only possible remaining question is whether or not it was permissive to combine milling work in a carman's assignment.
Provided the positions are properly bulletined, the answer can only be in the affirmative. There is no schedule classification of "millman", separating such work or position from that of carman, much less is there any separate roster. In fact, the incumbent of the position prior to rebulletining was Guy C. Rayner, a rostered carman, see carrier's Exhibit A-on the same carmen's roster and seniority district as Wreck Crane Operator-Carman R. W. Ethier, whose assignment to the newly combined position is being protested.
The employes, in letter from former General Chairman W. R. Hale, dated June 13, 1957, corroborate the carrier's position that carman and millman are synonymous, wherein it is stated in part:
In addition, please see carrier's Exhibit B wherein the employes have recognized for years the classification of-
This entire dispute and protest has been predicated upon the contention that the position of wreck crane operator and a carman's job could not be combined as one position. Of course, such argument has been ruled to the contrary when Referee C. G. Shake denied an identical claim in Second Division Award No. 2603 between the instant parties.
Carrier submits the Board has no alternative but to deny this protest on the basis of the decision rendered in Award No. 2603. This is supported by the clear intent of the parties as shown in carrier's Exhibits A, B and C submitted herewith.
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. 3134-5
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The question for determination here is whether or not Rules No. 109 or 112 were violated when the carrier abolished a job held by Mr. Ethier under a bulletin description of "Carman Wreck-crane Engineer", and posted for bidding a new job described as "Ass't Wreck Crane Engineer and Millman and Carman" which was awarded Ethier on Feb. 28, 1957.
An earlier posting of Ethier's job as "Carman and wreck crane engineer" was challenged by the organization and was decided in favor of the carrier by our Award No. 2603, dated September 11, 1957, wherein it was held that "the parties will be bound by the construction which they have mutually placed on it (the agreement) over a long period of time."
The only difference between that case and the present one is that here the duty of millman has been included in the bulletin. In these circumstances, consistency urges a denial award.
The question for determination is inaccurately stated in the findings of the majority. The question for determination is whether Rules 109 and 112 include engineers. A reading of Rule 109 discloses no mention of engineers and Rule 112 specifically excludes engineers. The majority has made an abortive attempt to revise these rules. The Board is not empowered to revise rules nor is it empowered to uphold the carrier in doing so unilaterally. The manner in which agreement rules may be revised is set forth in Section 6 of the Railway Labor Act.
The majority in the erroneous findings have attempted to justify the action taken on the theory that consistency urges a denial award because Award 2603 was denied. Award 2603 was denied on the basis of estoppel but the instant violation was immediately protested and claim should have been sustained.