The Second Division consisted of the regular members and in

addition Referee Howard A. Johnson when award was rendered.


PARTIES TO DISPUTE:

SYSTEM FEDERATION NO. 97, RAILWAY EMPLOYES-)

DEPARTMENT, A. F. of L.-C. I. O. (Machinists)


THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY



EMPLOYES STATEMENT OF FACTS: Construction of the device in dispute was assigned to Carman R. H. Grooms of Amarillo. Work involved consisted of laying out, fabricating and assembling certain mechanical parts such as gears, pulleys, sprockets, chains, bearings, shafts, belts, paper cutting attachment and other mechanical appurtenances used in the manufacture and assembly of a tool used to fold and cut paper to lengths needed to line freight cars for shipment of bulk merchandise.


Although machinists at Amarillo were used to machine certain parts used in the construction of this device, all other work involved thereon was performed by Carman Grooms.


Claimants are regularly assigned as journeymen machinists at Amarillo; were readily available and completely competent to perform work needed incidental to the fabrication and assembly of the paper folding machine in question.


POSITION OF EMPLOYES: It is submitted that in conformity with Rule 52 of the controlling shop craft's agreement, reading in part as follows:




3849-12

was improperly applied by not assigning machinists to build and erect the machine involved in this dispute is not only without support of the agreement rules, but also without merit and the claim of the employes in the instant dispute should be denied 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.




A carman who was not a machinist, but who was familiar with the coopering of potash cars with paper, on his own initiative experimented with an old electric wringer type washing machine to devise equipment for the more efficient cutting and crimping of the paper for this work. He was allowed to continue this effort, during his spare time on the job.


In accordance with his ideas machinist employes constructed the necessary cut-off bars and timing apparatus. He experimented with the old washing machine and these parts and was able to devise a time-saving piece of equipment.


The claim is that he thereby performed machinists' work, which under Rule 52 consists of "laying out, fitting, adjusting * * * of metals used in building, assembling, maintaining, * * * and installing * * * tools and machinery * * *."


It is apparent that this experimental or inventive work is not of the nature usually performed by railroad machinists, and the question is whether past practice has considered it as an infringement of their jurisdiction.


During the presentation of the claim on the property it was stated on behalf of the employes:



The General Manager replied that the instance mentioned differed from this claim in that there the carmen were not experimenting or inventing, but were merely copying a machine seen in the car shops of another railroad. He added that in any event the case was settled on a "without prejudice" basis. The employes' representative did not deny these statements but merely replied that the employes were not accountable for language used by management in settlement of claims. With regard to the latter point it would seem that settlement of a claim offered with the proviso that it should not constitute

3849-13 302

 a precedent, and accepted without elimination of his proviso, cannot properly be held to constitute a precedent.

 In any event it is only one instance of such claim and settlement, although admittedly "many mechanical devices have been constructed through the years on the carrier's property in a similar fashion."

 Under the circumstances of this case we cannot conclude that a violation of the Rules has been shown.








Dated at Chicago, Illinois, this 2nd day of November, 1961.

From time memorial machine experimental work has been done on the railroads in shop tool rooms by machinists.





The majority erred in making this award by disregarding two rules of the current agreement, therefor the claim should have been sustained.

                      C. E. Bagwell


                      T. E. Losey


                      E. J. McDermott


                      James B. Zink