The Second Division consisted of the regular members and
addition Referee Paul C. Dugan when award was rendered.
SYSTEM FEDERATION No. 156,
RAILWAY EMPLOYES' DEPARTMENT, A.F.L: C.I.O.
(FIREMEN & OILERS)
EMPLOYES' STATEMENT OF FACTS: The Long Island Railroad, iereinafter referred to as the carrier, maintains and operates permanently stablished Power Plants at Morris Park, Long Island City and Richmond sill Passenger Yards whereat they employ and assign the aforenamed qualified, licensed stationary engineers, holding seniority as such, hereinafter eferred to as the claimants.
In January of 1968, the carrier leased from the Reading Company what s known and identified as power car no. 92100, assembled and equipped as . complete self-contained portable steam generating plant. Power car no. 2100 is equipped with three (3) steam generators, connected to a common leader with a combined heating surface of 513 square feet, a working pressure ,f 300 lbs. per square inch, and a combined steam generating capacity of
Thus, it is obvious that the agreement has not been violated and the claim should be denied on its lack of merit-i.e., lack of contractual support.
In order that the issues will not be confused carrier respectfully calls the Board's attention to the following language:
We have advised the employes (and your board) they have violated the time limits provided in Rule 32, as amended. Carrier has not waived these violations nor should the foregoing paragraph be so construed.
It will be noted that the employes filed appeal with carrier's director of personnel relations under date of November 3, 1968. This letter was not received by carrier until November 11, 1.968. Carrier's regular monthly meeting with the employes was scheduled for November 14, 1968. That meeting was held and the appeal was discussed with the employe's representative despite the fact that the carrier had only three days in which to investigate the matter. Under ordinary circumstances the consideration of that appeal would have been held over until the next scheduled meeting with the employes but, as a courtesy, carrier discussed the claim with the employes on November 14 though we had had only three days to consider the matter.
These are the time limits referred to in the foregoing quoted paragraph. Not, as we are sure the employes will allege, the time limits set out in Rude 32, as amended.
In the foregoing carrier has clearly demonstrated that the claim of the employes should be dismissed and/or denied because:
Carrier affirmatively states that all matters contained herein have been submitted in substance to the Employes or discussed in conferences with the employes on the property.
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.
This dispute arose as a result of Carrier using laborers to operate a portable steam generating plant identified as Power Car No. 92100.
Carrier has raised a procedural defect in regard to Claimants' failure to make timely appeal from the denial decision of Carrier's Chief Mechanical Officer as well as failure to notify said Chief Mechanical Officer that Claimants were rejecting his said denial decision, all within the prescribed time limits set forth in Rule 32 of the Agreement governing the parties to this dispute. In regard to the contention, Carrier points out that Claimants had sixty (60) days to notify Mr. F. A. Danahy, Carrier's Chief Mechanical Officer, that his denial decision of July 12, 1968 was rejected and would be appealed further, and second, file notice of appeal to Carrier's highest officer designated to hear said appeals, in this instance Carrier's Director of Personnel Relations; that Claimants waited until 101 days had passed before making the appeal to Carrier's highest officer and therefore this claim should be dismissed.
The record discloses that this claim was filed on February 24, 1968 with Carrier's Plant Engineer, Mr. R. J. Crotty and denied by him by letter dated April 17, 1968, and in turn Mr. Crotty's decision was appealed by the Organization to Carrier's Chief Mechanical Officer, Mr. Frank A. Danahy by letter dated June 8, 1968. Further, by letter dated July 12, 1968, Mr. Danahy in response to the Organization's appeal letter to him of June 8, 1968, denied the claim after stating reasons therefor; and on October 21, 1968, the Organization's John Wasloski by letter dated October 21, 1968 addressed to said Chief Mechanical Officer, Mr. Danahy, referred to their discussion of these time claims on September 24, 1968 and asked Mr. Danahy for a reply after considering said claims; that on October 28, 1968 by letter Mr. Danahy repled to Mr. Wasloski's letter of October 28, 1968 advising that his position hadn't changed and that the original denial sent to him would remain; that on November 3, 1968, Mr. Wasloski, by letter replied to Mr. Danahy informing him that his decision would be appealed and on the same date, by letter the Organization appealed said denial to Mr. A. T. Van Wart, Director of Personnel Relations.
Mr. Van Wart, by letter dated November 18, 1968, to Mr. J. J. Wasloski, the Organization's International Representative, acknowledged receipt of Mr. Wasloski's letter of November 18, 1968 and went on to say:
It is thus clearly seen that Carrier by the explicit statement of its Director of Personnel Relations, Mr. A. R. Van Wart, waived any procedural defect in regard to the timely filing of said appeal within the 60-day time limit, and we are thus compelled to deny Carrier's contention in this regard.
Concerning the merits of the dispute, the Organization's position is that the duties of operation of the Power Car in question are the same as the duties in operating permanent Power Plants and which require the same knowledge and skills as of Claimants herein; that subsequently to laborers performing the work on the dates in question, Carrier assigned the Claimant Stationary Engineers to operate this Power Car thus establishing the work as belonging to Claimants; that a permit in the State of New Jersey requires that only licensed engineers may operate said units.
Carrier's defenses to this claim are: (1) the claim should be denied inasmuch as the Claimants were fully employed and suffered no loss; (2) the claim should be denied due to lack of contractual support in that the work does not exclusively accrue to the Claimants herein.
In its initial submission to this Board, Carrier alludes to the fact that prior to the time it became an Agency of the State of New York licensed stationary engineers were required by law for the operation of stationary boilers, but when Carrier became a State Agency these requirements were no longer required. However, it is the opinion of the Board that the work involved herein of operating Steam Power Car No. 92100, leased from the Reading Railroad Company, is work belonging to Claimants herein. There is no dispute that said portable Steam Power Car was used by Carrier as a stationary power plant in supplementing the Richmond Hill Heating Plant. Therefore, stationary engineers, not laborers, should have been used by Carrier to operate said steam car. Carrier eventually came to this same conclusion when it ceased using laborers after having used them for approximately 10 days. Further, although New York does not require stationary engineers to operate said units as here in question, New Jersey still does, thus indicating the necessity of having skilled stationary engineers perform the work in dispute herein.
As was said in this Board's Award No. 4726 involving a similar dispute and similar scope rule as before us:
Therefore, we conclude that Carrier violated the Agreement in this instance.
As to damages, Carrier contends that at all times Claimants were fully employed and thus suffered no loss; that this Board does not have the authority to assess a penalty.
The Organization ir_ its rebuttal to Carrier's ex parte submission contends that Claimants were not fully employed because the work involved was a seven (7) day a week around the clock operation and they are assigned in seven (7) day a week around the clock assignments; that they were no more fully