The Second Division consisted of the regular members and in
addition Referee William H. Coburn when award was rendered.
SYSTEM FEDERATION NO. 99, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Electrical Workers)
EMPLOYES' STATEMENT OF FACTS: Twenty-three (23) Electricians working the day shift at the Burnside Shop seniority point, as listed on the 1965 seniority roster, hereinafter referred to as the Claimants, were employed by the Illinois Central Railroad Company, hereinafter referred to as the Carrier.
Claimants' duties are to perform all work coming under the Special Rules Classification of Electricians and all other work generally recognized as Electricians' work.
The electricians' seniority roster for the Burnside Shop, dated January 1, 1965, which was signed by Shop Superintendent L. R. Barron and posted by J. F. Stewart, at 10:05 A. M., January 4, 1965, lists the Claimants. See attachment marked as Exhibit A.
On January 2, 1965, the Carrier started installing public address systems and door circuits in Suburban Cars at Burnside Shops. On this same date four (4) supervisors used tools, soldered connections, measured and cut wire loom, and installed wire in wire mold conduit.
On January 3, 1965, five (5) supervisors performed the same kind of work outlined in the above paragraph.
The findings of Second Division Awards 1638, 2722, 3967, and 4083, Third Division Awards 7212 and 8527 and First Division Awards 6578, 8251, and 15865, among others, are all to the same effect. There is no penalty rule applicable to the present dispute and the penalty requested by the brotherhood could not be granted without amending the agreement between the parties, an act beyond the power of the Division. Accordingly, the Division must deny the claim even if a claim identifying the claimant was filed and a violation had occurred.
We have shown proper claim was not filed. The claimants cannot be reasonably identified. The brotherhood did not remedy this defect by saying that every man on the seniority roster was damaged by supervisors performing about three hours' work. The Division should hold against the brotherhood for this reason alone.
Furthermore, the agreement was not violated. All that occurred was that on a few occasions, a supervisor, in the normal exercise of this duties, borrowed one or two tools from an electrician who was having trouble with the new work and showed him how to do it properly. The supervisor did nothing more than instruct the man - something that happens thousands of times daily in the railroad industry.
It is well-established that a supervisor may perform `craft" work in connection with his duties. Rule 33, in fact, specifically recognizes this. Instructing employes is a vital part of a supervisor's job. It is only common sense to conclude from this that a supervisor has the right to do "craft" work in connection with his duty to instruct employes.
Finally, even if the claim were not defective and even if the agreement had been violated, the monetary claim could not be sustained. If the supervisors had not done the work, the electricians who were watching them would have done it. The electricians did not lose compensation by reason of not being used to do the work. If they had been used all that would have happened is that they would have been paid for working instead of watching.
We ask the Division to sustain the company's position by denying the claim.
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.
The Carrier has made timely objection to the Board's consideration of this dispute on the merits on the grounds that the claim is barred for failure
of the Employes to identify the claimants involved in accordance with the, requirements of the time limit rule.
On the facts of this particular case, the Board finds no support for the Carrier's objection. Unlike those other cases cited by the Carrier, here the Claimants are readily ascertainable and identified by means of an attachment. to the Employes' Submission listing their names, birth dates and seniority dates. (Employes' Exhibit A.) Accordingly the objection is overruled.
On the merits, it appears that the dispositive question is whether or not. certain work performed by the Carrier's supervisors on January 2 and 3, 1965_ was an infringement of the contractual rights of Electricians under the basic agreement in effect at that time. (Agreement effective April 1, 1935 as. amended December 16, 1943, and September 1, 1949.)
The work performed by the supervisors was in connection with certain suburban passenger car modifications which consisted of installing a microphone at the cab end, a jumper cable outlet at both ends and loudspeakers, in the vestibules and in the middle of the passenger compartments. Eight electricians, eight carmen, and two carmen helpers were assigned to the job.. The work of the electricians consisted, in the main, of stringing pre-cut wires,, connecting and soldering them, and installing jumper cable receptacles.
According to the Employes, four supervisors were present on January 2: and five on January 3, not to instruct the work force but actually to performthe necessary work in order to expedite completion of the job.
On the other hand, the Carrier insists the supervisors performed very limited work for instructional purposes only.
Rule 117, "Classification of Electrician," reserves electrical work of the. kind here involved to employes of the electrician craft.
Article III of the National Agreement of September 25, 1964, (effective November 1, 1964) provides:
This Division has heretofore ruled upon the question of whether Article III, supra, supersedes the assignment of work rules of the basic agreement. In our Award 5242, Carmen and the Elgin, Joliet and Eastern Railway Company, with Referee Howard A. Johnson participating, we held that Article III does not supersede such rules; that it "`. . . merely supplements the Rule by placing a limit on the amount of craft work to be performed by supervisory employes at points where no mechanics are employed; but it makes no reference to the provision of Rule 30 which recognizes the right of foremen to perform work in the exercise of their duties, and contains no provision inconsistent therewith." In the interest of consistent interpretation and application of agreement rules, the Board agrees with the foregoing findings and holds that they are controlling here. Consequently, the Employes' contention that the second paragraph of Rule 33 of the agreement in effect when this dispute arose was superseded and abrogated by the aforesaid Article III cannot be sustained.
Accordingly, if the facts of record establish that the supervisory personnel here involved did no more than perform a minimal amount of craft work incidental to instructing the electricians in the proper performance of their duties, there would be no violation of the cited rules. The burden of showing by competent evidence that more than that was done by the supervisors rests upon the Employes. The record reveals that they consistently asserted this as a fact; something which was just as consistently denied by the Carrier. Neither party has offered any proof to substantiate his respective contention. Mere assertions and allegations, when denied, do not constitute evidence. We accordingly hold that the Employes, upon whom the burden of proof rests, have failed to show by competent evidence that the supervisors in this case exceeded the permissible limits imposed by the contract in performing craft work on January 2 and 3, 1965.
We dissent to this Award as the majority failed to recognize the fact that Rule 33 of the Agreement, effective November 1, 1964, was amended to delete the paragraph reading:
The Carrier knows and understands this because when they had the Agreement reprinted showing that the Agreement was effective April 1, 1935, amended December 16, 1943, amended September 1, 1949, amended June 1, 1966, Rule 33 in this reprinted Agreement reflected the amendment quoted above. Therefore, the statements of the employes in their rebuttal on pages 7 and 8 are true statements of facts.
The incidents in this dispute occurred on January 2 and 3, 1965, therefore, the amended Rule 33 effective November 1, 1964, was in effect and the portion which Mr. Melberg is alleging was in effect, `This rule does not prohibit foremen in the exercise of their duties from performing work,' was no longer in effect as the parties agreed to delete it in the amended Rule 33.
I am instructing Executive Secretary McCarthy to see that you receive the Agreement which is currently in effect on the property