The Second Division consisted of the regular members and in
addition Referee Lloyd H. Bailer, when award was rendered.
SYSTEM FEDERATION NO. 26, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Machinists)
EMPLOYES' STATEMENT OF FACTS: Machinists R. W. Ray and L> S. Williams, hereinafter referred to as the claimants are regularly employed: as machinists by the Central of Georgia Railway Company, hereinafter referred to as the carrier, in carrier's main heavy repair shop at Macon, Georgia, and were available to have been used, if called, from the overtime board on their rest days.
On November 14, 1957, one six cylinder series 240 International Gasline Engine failed on Ballast Regulator No. 5 Machine, at, or near Gantt, Alabama. The carrier elected to use employes of Baker Mayfield Company (International Harvester Company dealers) from Macon, to change out this defective engine on November 15, 1957, rather than to use its own employes who hold contractural rights to such work.
This dispute has been handled with all officers of the carrier designated to handle such disputes, including the highest officer designated by the carrier, all of whom have failed to make satisfactory adjustments.
The work performed by contractor at Gantt, Alabama, was at no cost to the railway company under their warranty to the carrier. Such free service could not have possibly deprived claimants of anything. The claim has no semblance of merit.
The claim is apparently for a new rule. Carrier urges that the Board does not possess the authority to write rules, and the Board has consistently so held. The Board's holdings are based on the Railway Labor Act which clearly restricts the Board's authority to deciding
The Board has heretofore held that such limitations have been placed upon it by law, and that it does not have authority to write new rules. See Third Division Awards Nos. 6828, 6007, 5864, 4439, 4435, 2491, and others. Carrier prays, therefore, that a denial award is clearly in order for this one reason, if no other. Carrier so urges.
It is the further position of the Carrier that the burden of proof rests squarely upon the shoulders of the petitioners. See Second Division Awards Nos. 2938, 2580, 2569, 2545, 2544, 2042, 1996, and others. Also see Third Division Awards Nos. 8172, 7964, 7908, 7861, 7584, 7226, 7200, 7199, 6964, 6885, 6844, 6824, 6748, 6402, 6379, 6378, 6225, 5941, 2676 and othersall of which clearly state that the burden of proof is on the claimant party to prove an alleged violation of the agreement.
2. Past practice most assuredly does not support the Employes' position. Performance of the work by contract as outlined in detail in Carrier's Exhibits "A" and "B" was in keeping with accepted historical past practice as shown by probative evidence.
3. The claim is in fact a request that the Board grant the Machinists a new all-encompassing rule. That under such facts in the past this Board has correctly held it is without authority to grant new rules, and
4. Since the claim clearly is not supported by the current contract on this property, the Board should not do other than render a denial award.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that: 3660-15 657
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 work in dispute is the changing of the engine in a ballast regulator plow machine. The engine exchange and installation were performed by the engine manufacturer's dealer under a warranty, and at no cost to the carrier. The installation of the new engine was made necessary by the failure of the original engine supplied by the manufacturer.
The subject work having been performed under a warranty, there is no basis for a finding that the agreement was violated as charged by the petitioner.
The findings by the majority that the work was performed by an engine manufacturer's dealer under a warranty completely ignored the fact that such warranty does not take precedence over clear and unambiguous rules of the current agreement.
Machinists Special Rule 52, of the current agreement, describes the work of "installing engines" as being machinists' work and the carrier posted bulletins for machinists positions which were bid in as "Roadway Mechanics" listing the duties of said positions as follows: