The Second Division consisted of the regular members and in
addition Referee Charles W. Anrod when award was rendered.
SYSTEM FEDERATION NO. 45, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. -C. I. O. (Machinists)
DISPUTE: CLAIM OF EMPLOYES: 1. That the Carrier violated the rules of the contract and a practice of many years standing when on December 8 and 9, 1959, certain repairs to Shop Mule No. 3 were assigned to employes of the Maintenance of Way Department.
EMPLOYES STATEMENT OF FACTS: The St. Louis Southwestern Railway Lines, hereinafter referred to as the carrier, maintains a Maintenance of Equipment Repair Shop at Pine Bluff, Arkansas, where machinists are employed. Among those machinists is C. E. Landreth, hereinafter called the claimant, assigned to perform among other duties the work involved in this dispute.
At its Pine Bluff Mechanical (Maintenance of Equipment) Shop the carrier has a gasoline powered tractor (Shop Mule No. 3) for use of maintenance of equipment shop forces to facilitate the performance of work in the maintenance of equipment shop.
On December 8, 1959 this shop mule failed mechanically necessitating mechanical repair work being made amounting to twelve (12) hours of machinists' work. Instead of having this machinists' work performed in its Pine Bluff Maintenance of Equipment Shops, the carrier sent the machine to its Bridge and Building Roadway Shop and had the work performed by the bridge and building department employes.
The claimant was available and was experienced as he had in the past performed all mechanical repairs to such equipment and has in fact repaired
pute are respectively carrier and employe within the meaning of the Railway Labor Act as approvd June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The carrier maintains extensive shop facilities at Pine Bluff, Arkansas, which include a Maintenance of Equipment Shop (hereinafter referred to as "MES") and a Roadway Machine Shop (hereinafter referred to as "RMS"). The MES is under the supervision of the Mechanical Department and the RMS is under the supervision of the Bridge and Building Department.
For many years, a number of gasoline powered tractors, so-called "shop mules", have been used within the shop area to pull trailers and equipment over driveways and service roads. In December, 1959, shop mule No. 3 which was assigned to the MES was repaired. The repair work consisted of installing a rebuilt starter, charging the battery, replacing one spark plug, and adjusting the generator. This work was performed by an employe of the RMS who is represented by the Brotherhood of Maintenance of Way Employes.
The Claimant C. E. Landreth who is employed as a machinist in the MES and who is represented by the Inaternational Association of Machinists filed the instant grievance in which he contended that the above described repair work belonged to the machinists' craft and should have been assigned to him. He asked for twelve hours' compensation at the applicable rate of pay. He also requested that the Carrier be ordered "to return this class of service to the Machinists' Craft." The Carrier denied the grievance.
1. Rule 43 of the applicable labor agreement on which the Claimant primarily relies reads, as far as pertinent, as follows:
Because the work in question involved repairs to a gasoline powered engine the Claimant asserts that it should have been performed by a Machinist in accordance with the specific terms of Rule 43. We disagree. The term "engine" is not defined in the labor agreement. It is a generic term lacking in precision and plausible contentions can be made for different interpretations. In the broadest sence, the term connotes any machine that uses energy to develop mechanical power. See: Webster's New World Dictionary, College Edition, 1962, p. 481. In the absence of any indication to the contrary, we do not believe that the parties intended to place so encompassing a meaning upon the term "engine." Such an interpretation would confer exclusive jurisdiction upon the machinists' craft to maintain all equipment used at the Carrier's property for the sole reason that it is mechanically powered by an engine and, thereby, extend the coverage of Rule 43 far beyond any reasonable scope. The line demarcating repairs to engines which exclusively belong to the machinists' craft and those which do not can be determined only on the basis of the facts underlying each case. Custom and past practice are facts of special signifiance. See: Award 4043 of the Second Division. 4259-8 5544
Applying the above principles to this case, we have reached the following conclusions:
Tractors or shop mules are not specifically mentioned in Rule 43. Hence, we are of the opinion that repairs to them are covered by the Rule only if they constitute "other work generally recognized as machinists' work." See: Award 1808 of the Second Division. The record shows that machinists in the MES have repaired shop mules in the past. Yet this fact is of no decisive significance unless they have performed such work exclusively. See: Award 1110 of the Second Division. The available evidence does not permit such a finding. On the contrary, the evidence on the record considered as a whole reveals beyond doubt that shop mules, including those used in the Mechanical Department, have also been repaired by employes of the RMS on numerous occasions since 1947, or for more than twelve years prior to the time when the grievance under consideration arose. The record is devoid of any evidence or indication that the machinists in the MES or the Organization ever formally protested the repairing of shop mules by employes other than machinists, except in the instant case. Conceding that "some repairs to this class of equipment might have been made by B&B employes" (Organization's Rebuttal Brief, p. 3), the Organization denies, nevertheless, any knowledge thereof. However, RMS employes have not merely repaired shop mules, including those used in the Mechanical Department, in some or a few isolated instances but have done so in numerous instances during a considerable period of time. It is difficult to conceive how all those instances could have escaped the attention of the MES machinists as well as of the Organization. Their continued failure to file a formal grievance prior to the instant one can reasonably be construed only as acquiescence in and acceptance of the existing practice.
In summary, we hold that a consistent and long-continued practice known to and accepted by all interested parties has existed at the Carrier's Pine Bluff shops under which shop mules have been repaired either by machinists in th Maintenance of Equipment Shop or by employes in the Roadway Machine Shop. As a result, it cannot validly be said that such work has generally been recognized as work exclusively belonging to the machinists' craft within the purview of Rule 43. Accordingly, we hold that the Carrier did not violate the Rule when it assigned the repair work here in dispute to an employe of the RMS.
2. The Claimant also basis his claim on Rules 20 (Seniority), 34-1 (Assignment of Work), 42 (Qualifications), 44 (Machinist Apprentices), 45 (Machinist Helpers), and 103 of the labor agreement. A careful review of said Rules has satisfied us that they have no relevancy to the disposition of this case. The case stands or falls upon the answer to the question as to whether machinists have an exclusive right under Rule 43 to repair shop mules. For the reasons hereinbefore stated, the answer is in the negative.
As you can see from the above rule, the term engine is defined as all inclusive within the meaning of the Agreement as a whole. This dispute involved work on an engine operated by gasoline. This rule has been in existence in the National Agreement for more than forty years and in this Carrier's agreement for almost as many years. The language definitely sets out that Machinists have the right to work on engines operated by steam and other power without exception within the confines of the contractual scope of the Shop Craft Agreement.
The facts of the record before this Board are so emphatically clear as to what work exactly is in dispute and to evade or circumvent the agreement by the majority stating in part:
does violence to the practical and reasonable application of the basic rules of contract or agreement. Logical men having knowledge of railroad practices, terms and agreement rules would understand the background and spirit and intent of the language in these rules and not have to resort to Webster's New World dictionary or other sources outside the society of railroading to know and understand the railroad agreement terminology.
As shown from the above, the Referee has placed such an absurd interpretation on Rule 43 which neither he nor the majority were called upon to do. Contrary to the many Board awards pointing out the wrong in singling out words (engine) and attempting to place a literal interpretation on same, this action here is a direct opposite to this Board's position on past awards. Therefore, this award should have been in the affirmative and we dissent.