The Second Division consisted of the regular members and in
addition Referee Gene T. Ritter when award was rendered.
SYSTEM FEDERATION NO. 16, RAILWAY EMPLOYES'
DEPARTMENT, A. F. OF L.-C. I. O. (Sheet Metal Workers)
In conclusion, the carrier respectfully submits that the claim is not supported by the facts and evidence presented in carrier's submission and hereinafter shown as a summary. Accordingly, the claim should be denied.
1. Sheet metal workers do not by rule have the exclusive rights to the work claimed and no evidence was offered that Rule 84 does grant exclusive rights to sheet metal workers to perform the work involved herein.
2. MofW forces have been assigned to such projects in the many shops, offices and warehouses of this carrier continuously from the year prior to the craft agreement to the present claim.
4. The organization has not and cannot meet the burden of proof that the work herein involved has been exclusively performed historically, customarily and traditionally by the sheet metal workers. See Second Division Award No. 5740.
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.
Th s dispute involves the question of exclusivity. The Organization relies on Rule 84, Classification of Work, of the current Agreement to establish their contention that Sheet Metal Workers had the exclusive right to install the sewer drain lines and necessary fittings in the wash rooms and
toilet facilities at the Roanoke Shop. Carrier authorized and permitted Maintenance of Way Craft employes to install these facilities over the protest of the local committee. Carrier contends that this work required breaking up a concrete floor with an air hammer, digg'ng ditches, laying cast iron pipe, making certain connections and re-cementing the floor. In defense of this claim, Carrier states that there is third party interest, Maintenance of Way employes, and that not'ce should be given these parties prior to resolving this dispute; that the claim is vague as to work and hours claimed; that Rule 84 does not support the employes; that past practice supports the Carrier; and that the involved work did not come under the Mechanical Department and rightfully belonged to the Maintenance of Way Craft.
The Board finds that third party notice has been served on Maintenance of Way employes and that this Board has jurisdiction to consider and determine this dispute.
The Board finds that Sheet Metal workers performed work in the building, but that Maintenance of Way employes performed the involved work outs'de and under the building. This Board further finds that the pipe involved in this work was cast iron pipe which is not mentioned in Rule 84 (Classification of Work Rule). It has long been established by proper contract interpretation that when certain items are specified, none others will be implied. Therefore, far the reason that parts made of sheet copper, brass, tin, zinc, etc., are specifically set out in said Rule 84 and that cast iron is excluded, cast iron will not be implied. Also, no reference in said Rule 84 is made to server work.
The involved work was performed outside and under the building. Award 2316 (Wenke) distinguishes work performed in the building from work performed on, under or around the building.
Award 5831 and 5830 c'ted by the Organization involve installation of a steam line, not a sewer line. The steam line is specifically covered in the Classification of Work Rule. The Organization also cites Awards 5832 and 5763 which are distinguished as follows: Award 5832 involves the installation of toilets and wash basins in the building and Award 5763 covers propane gas which is referred to in the Classification of Work Rule.
Award 5951 has been carefully reviewed and found not to be in palpable error. This award involves the same parties and is found to be controlling in this instance.
This case involves a dispute between the Sheet Metal Workers' Union of System Federation No. 16 and the Norfolk & Western Railway Company as to whether the Un_on members, under the Collective Bargaining Agreement with the Carrier, were entitled to certain jobs (or compensatory pay) for time which the Carrier had unilaterally alloted to members of another union not covered by the Shop Craft Agreement.
The Carrier Members of this Division, voting with the referee, constituted the majority in making this erroneous award. We contend the referee erred when he ignored, or misconstrued, the specific language of Rule 84 - Classification of Work - Sheet Metal Workers:
and then proceeded to draw his own hypothet'cal line of jurisdictional or contract right to perform when he stated in pertinent part:
The referee, in his desperate attempt to wrest from this craft what is rightfully theirs by agreement, twists and tortures the sustaining Award ?316 which dealt with an entirely different kind of work (fiash'ng on a roof and metal cabinets) which the referee recognized as sheet metal workers' work. Here the Division transcends its authority of deciding a dispute on the unamb'guous language and, in a sense, writes new rules which is not ours to deal with but is reserved for the unions and the carriers under Section 6 and others of the Railway Labor Act.
Th's type of reasoning has been rejected by this Division on many occasions and also rejected by the Supreme Court in Whitehouse v. Illinois Central R. Co., 349 U. S. 366 (1955).
Further, the Supreme Court in an even more recent case dealing with the proper interpretation of a railroad contract rule in the settlement of a jurisdictional assignment, held:
Transnortation-Communication
Employees Union, Petitioner,
v.
Union Pacific Railroad Co.
The referee's absurd interpretation of the unambiguous language found in Rule 84 does violence to the historic reasoning and agreement language which has been in existence and interpreted properly as far back as 1919 under the old United States National Agreement.
Dealing with the statement of the referee wherein he attempts to carve up and rest the pieces of his proverbial jigsaw puzzle by attaching meaning to the plate of metal language, i.e., sheet, copper, brass, tin, zinc, etc., being applicable to pipes and pipe fittings is an absolute m·'scarriage of justice. It is a complete display of his lack of understanding of railroad agreement language as well as the customs and practices within this unique society. There is no excuse for doing such violence to this historical language and creating a situation of composite railroad employe work to the disregard of craft lines, the proposition which the carriers have been unable to accomplish through negotiations under the provisions of the Railway Labor Act on a National basis.
Plate of metal description spelled out in the rule has nothing to do with pipes made, formed, or molded out of any kind of material.
When one considers the specific language, "pipe fitting in shops, yards, buildings," it is absurd to reason that if the pipe is outside of a building or under a building it then escapes the contract language of Rule 84. Logically, how could one work on pipes in the yard if he were not permitted to get out of the building?
The proper application to shops, yards, buildings principle in the industry was cited in numerous awards to this referee and just reaffirmed in a very recent Award 6056, Referee Harold M. Gilden. He states, among other things;
For all of the foregoing reasons and awards cited, the principles of stare decisis should have weight enough alone to have sustained the Union in this instant dispute. Further, the referee's familiarity and experience with the Shop Craft rules, as well as the awards of this Division being sound of substance and correct in merit, should have provided the guide lines (Precedent Sub-Silentio) for him to have made a correct evaluation of the dispute and agreement language in this instant case.