The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when the award was rendered.
SYSTEM FEDERATION NO. 91, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L: C. I. O. (Sheet Metal Workers)
DISPUTE: CLAIM OF EMPLOYES: 1-That under the current Agreement other than Sheet Metal Workers were improperly used to perform the work of installing and assembling all piping and pipefittings in connection with the installation of all air conditioning units and their appurtenances at the Union Passenger Station, Louisville, Kentucky.
2-That accordingly the Carrier be ordered to additionally compensate the hereinafter named employes for nine hundred and sixty (960) hours or at the rate of ninety-six (96) hours each at the applicable rate of pay from December 7, 1957, to approximately April 2, 1958. The classification and their names follow:
EMPLOYES' STATEMENT OF FACTS: Under the approximate date of December, 1957, January, February, March and April 1958, the carrier did contract out to the Stevenson's Engineering Company, dealers in air-conditioning equipment, the air conditioning of the Old Union Passenger Station at Louisville, Kentucky, which includes offices and other rooms in the building.
The type of air-conditioning equipment used consisted of several individual units of approximately five (5) tons to units of several tons each, these units were located in various parts of the building and were piped with copper
etc., it could not be expected that the railroad employes would develop the necessary "know-how" to properly install equipment of this type. Further it is important that carrier be in position to obtain warranty on both the equipment and installation, particularly so, as this is a field of "work" in which its employes have not been trained.
That the foregoing reasoning is sound is borne out by the findings in .award No. 2883 of this Division, Referee D. Emmett Ferguson.
Claim of employes is without merit, is not supported by the agreement, and should be denied.
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 t:iis 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 record is essentially the same as in Award 3769, and what is Caere said about the duct work is also true of the pipe work here involved. Consequently Part 1 on the Claim must be sustained, and Part 2 must be remanded for disposition on the property by the parties.
The majority's decision to sustain the claimants in these disputes is completely erroneous and contra to a previous dispute (Award 3433) involving the same parties, the same work, and literally the same ex parte submission of the employes. The decision of this Board in the instant disputes when considered along with the action of the Board in Award 3433, places an unfair burden upon the functions of management as it plans for future modernizing of existing buildings simply because this Board has given an unrealistic monopoly conception of a scope rule. Rule 87 was not violated. When Rule 8 7 was written, air conditioning for buildings was not contemplated by either party, and, therefore, this work was neither included nor excluded. Consequently, the employes could not claim that Rule 8 7 was violated. 3770--6 240
There was no contracting or farming out of work belonging to these claimants in the instant disputes. The rights of the employes never attached until the carrier acquired possession of the equipment. Rule 87 does not abridge the right of the carrier to provide modernization of and additions to existing buildings. The purchase of air conditioning equipment installed with a warranty as to its functional operation was completely within the proper function of management.
As a practical matter, the work in these disputes is hardly the type of work that we could reasonably expect the carrier to undertake with the limited forces available assigned to locomotive and car repairs. The carrier was justified on the basis of judgment and previous experience (see Award 3433) in handling this work in the manner in which it was handled.
Many statements made by the employes were merely conjectures, and no probative evidence was offered to support the employes' position.
These employes were not available for the work involved in these claims, because the carrier used and paid them for work performed under the agreement. They were not damaged, nor did they lose time. In spite of this fact, the majority has decided that sheet metal workers should have been used and they are now entitled to a generous gratuity; however, the majority properly recognized that the employes' claims as to the hours involved were unsupported with evidence and the actual hours involved were to be properly adjudicated on the property.
This Division has held in many previous awards that extenuating circumstances such as (1) the great magnitude of the project, (2) the specialized nature of the project which makes it novel or unusual, and (3) the lack of available experience, know-how, supervision, and sufficient employes, are adequate reasons for awarding construction work by the carrier to outside contractors. In these disputes, all three reasons existed.
Rule 87 does not conemplate that the employes are entitled to perform work such as involved in these disputes. This Division erred in the issuance of this decision.