The Second Division consisted of the regular members and in addition Referee Irwin M. Lieberman when" award was rendered.


                    ( System Federation No. 2, Railway Employes' .

                    ( Department, A. F: of L. - C. I. 0. -

      Parties to Dispute-- ( (Sheet Metal Workers)

                    ( Missouri Pacific Railroad Company ..

      DisnutPClam o PMloves:.


                1. That the Carrier violated the current agreement, particularly Rule 97 at St. Louis, Missouri when they improperly assigned two Machinist the duty of removing all piping to water cooled air compressor and the removing of hand rails from Engine 1119 on July 16, 1970.


                2. That accordingly the Carrier be ordered to additionally compensate Sheet Mbtal Workers F. Keller and C. Dane in the amount of eight (g) hours each at the pro rata rate of pay.


      Fi ndines


      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 Hoard has .jurisdiction over the dispute
      involved herein.


              Parties to said .dispute- were -given due -notice of hearing_thereori;~: ' ~=


      On July 16, 1970, on the third .shift at Carrier's diesel shop at EwIng Ave., St. Louis, Missouri, a running repair facility, Carrier assigned two machinists the work of removing a water-cooled air compressor from locomotive 1119. Before the compressor could be removed, the piping leading to and from the compressor had to be disconnected and a section of the engine hand rail had to be removed so that the compressor could be lifted free of the engine. The Organization claims that the work of disconnecting all crater, oil and air pipes from the air compressor and the hand rails from the engine should have been performed by Sheet Metal Workers and hence Claimants were damaged.


      The Organization relies primarily on Rule 97 of the current agreement, which reads in pertinent part:

Form 1 - Award No. 6440

 Page 2 , . ~ Docket N. "Connecting and disconnecting of air, water, gas, oil and steam
 pipes, and hand rails; and all other work generally recognized. as
 Sheet Metal Workers` work."

 The Organization also cites in support of its position a jurisdictional settlement, Award 658, dated July 19, 1954, accepted by the Carrier which gave the handrail work to the Sheet Metal Workers craftsmen. Finally, the Organization claims that the Incidental Work Rule is not applicable since the Carrier refused a time check of the work and'further that rule was abrogated as of May 12, 1972 and is no.longer~effective. With reference to the time check matter the record. contains only the following letter relating to the request:

          "On July 16, 1970, third shift, two machinists were assigned to remove the air compressor from Engine 1119. Sheet Metal Worker J. Brimm was removing his piping, when the supervisor assigned

_ him other duties. He was,told that the machinists would per-
          form all the work on this job.


          Again, the amount of piping on this water cool air compressor, is in excess to that of the machinist and their work. Also the

' handrail has to be removed on this job.

          This constitutes a violation of the Controlling Agreement.


          Claiming eight hours penalty,compensation each, at the pro: rata rate, in favor of Sheet Metal Workers F. Keller and C. Dane. ' . .


          As requested after the first violation on this shift, no time ' check was made, 7-8-70."


:`he Carrier bases its assignment of the work in question-to the machinists on its interpretation of the Incidental Work Rule (Public haw 91-226 effective April 9, 1970) which stated-.

          "At running repair work locations which are not designated as out-

          lying points where a mechanic or mechanics of a craft or crafts.

          are performing a work assignment, the completion of which calls for

          the performance of "incidental work" (as hereinafter defined) covered

          by the classification of work rules of another craft or crafts, such

          mechanic or mechanics may be required, so far as they are capable, to

          perform such incidental work provided it does not comprise a pre

          ponderant part of the total amount of work involved in the assignment.

          Work s:iall be regarded as "incidental" when it involves the removal

          and replacing or the disconnecting and connecting of parts and

          appliances such as wires, piping, covers, shielding and other.appmir

          tenances from or near the main work assignment in order to accomplish

          that assignment. Incidental work shall be considered to comprise a

                                                            i


Form 1 Award No. 6440
 Page 3 Docket No. preponderant part of the assignment when the time normally required
 to accomplish it exceeds the time normally required to accomplish
 the main work assignment. In no instance will the work of overhauling,
 repairing, modifying or otherwise improving equipment be regarded as
 incidental.
 If there is a dispute as to whether or not work comprises a "prepon
 derant part" of a work assignment the carrier may nevertheless assign
 the work as it feels it should be assigned and. proceed or continue
 with the work assignment in question; however, the shop committee may ,
 request that the assignment be timed by the parties to determine whether
 or not the time required to perform the incidental work exceeds the time
 required to perform the main work assignment. If it does, a claim will
 be honored by the carrier for the actual time at pro rata rates required
 to perform the incidental work."
                                                              I

        We find that the Incidental Work Rule did modify the implementation of Rule

97 as well as other jurisdictional agreements and that it was controlling as of July
 16, 1970., regardless of later modification. The question then remains as to whether I
 the Carrier correctly applied that rule. First as to the time study, we do not agree
 that the letter quoted above, dated September 4, 1970, constitutes evidence that the
 shop committee._had requested that the work in question on July 16,_ 1970 be timed.
 There is no dispute that the removing of the air compressor from the locomotive was
 machinists work. The record reveals little substansive evidence but much rhetoric I
 concerning the relative work involved in the various tasks. We are not disposed
 thereforeito disturb the supervisory decision that the main task was that of the
 machinists and. the claimed work was incidental to that task.
 I
 A W A R D
        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Second Division.


Attest:
                      w

        I

        Executive Secretary


                                                              I

Dated at Chicago, Illinois, this 17th day of January, 1973.

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              LABOR MEMBERS' DISSENT TO AWARD NO. 6440

              DOCKET NO. 6256


    The findings in Award No. 6440 read in part:


        "...With reference to the time check matter the record contains only the following letter relating to the request:


        'On July 16, 1970 third shift, two machinists were assigned to remove the air compressor from Engine 1 1 19. Sheet Metal Worker J. Brimm was removing his piping, when the supervisor assigned him other duties. He was told that the machinists would perform all the work on this job.


        Again, the amount of piping on this water cool air compressor, is in excess of that of the machinist and their work. Also the handrail has to be removed on this job.


          This constitutes a violation of the Controlling Agreement.


          Claiming eight hours penalty compensation each, at the pro rata rate, in favor of Sheet Metal Workers F. Keller and C. Dane.


          As requested after the first violation on this shift, no time check was made, 7-8-70."'


This is not a fact, as the record shows that the first dispute over the work involved in this dispute occurred on July 8, 1970 and that the Employes made a request that a time check be made on the work involved. The employes did file a claim on that violation and progressed the dispute to this Division. We issued it Docket No. 6257.


The Carrier failed to grant the request and again made the same type of assignment: on July 16, 1970 which resulted in this dispute being progressed to this Division. We issued it Docket No. 6256. The record in both of these disputes show that the request for a time study was made and as to date the request has not been granted.


The Local Chairman in this first written claim to the Carrier on the violation of July 8, 1970, which is shown as Employes' Exhibit 1 in Docket 6257 states the following:


          "A request was made to the Master Mechanic and General Foreman for a time check to be made on the next doubtful situation but no answer was forthcoming."

-2-

This statement was explained to the Division by General Chairman Moorhead at the hearing before the Division, when he said that after the violation that occurred on July 8, 19070, the Local Committee made a verbal protest to Master Mechanic Larkan about the violation and requested that a time check be made the next time such assignment was made. The next time it occurred was on July 16, 1970, eight days after the first dispute occurred which was after the Committee requested that the time study be made.


The Carrier failed to grant the request resulting in the filing of both the claims. The record in the dispute shows that the issue of a request for a time study was made prior to the violation of July 16, 1970 and was made part of the dispute up to and including the top Carrier official. As the Employes, in their Exhibit 1, which is the initial claim to Master Mechanic Larkan, state the following in part:


          "As requested after the first violation on this shift, no time check was made 7-8-70."


      Master Mechanic Larkan's reply, which is shown s Employes' Exhibit 2, reads in part:


          "As for your request for a time study, we will be happy to work with you on this matter within the framework of the new agreement."


      The time study request was again referred to in Exhibit 2A which reads in part:


          "We cannot agree that the Machinists had the preponderance of the work, because there was no time checks."


      This was also mentioned in the next appeal as Employes Exhibit 4 A reads in part:


          "...also there was never a time check made."


The top Carrier officer, Mr. 0. D. Sayers, Director of Labor Relations, in his letter dated September 24, 1971, shows as Employes' Exhibit 10, states the following:


          "Although you stated that a general request had been made for a time study - prior to the date of claim, the fact remains that there was no request for a time study in connection with the removal of the air compression in question."

-3-

      So, when the referee, in his findings, states that:


          "With reference to the time check matter the record contains only the following letter relating to the request..."


he ignored the record before him as shown above. The Labor Members in discussing these two disputes before the referees pointed out that the Carrier's chief negotiator, Mr. J. P. Hiltz, Jr., in his statement before the Committee, supports the Employes' position statement before the Committee, supports the Employes' position in these disputes by stating that when a Carrier fails to grant a request that a time study be made, as was done in these cases, the claim should be paid. The following appears in the printed record of the hearing before the Committee: on Interstate and Foreign Commerce House of Representatives, Ninety-First Congress Second Session H. J. Res. 1 1 12 and H. J. Res. 1 124, Joint Resolutions to Provide for the Settlement of the Labor Dispute Between Certain Carriers by Railroad and Certain of their Employes.


      Page 234, Mr. Hiltz:


          "If there is a dispute as to whether or not the incidental work rule comprises a preponderant part of a work assignment, the carrier may nevertheless assign the work as it feels it should be assigned and proceed or continue the work or assignment in question. However, a joint time check will be granted at the request of the shop committee to determine whether or not the time required to perform the incidental work exceeded the time required to perform the main assignment. If the joint check discloses that the time required to perform the incidental work exceeded the time required to perform the main assignment, claim will be honored by the carrier to the first man out on the overtime board of the craft under whose classification of work rule the incidental work falls or the actual time to prorata rates required to perform such incidental work with a minimum of two hours. If the representation of the carrier declines to make a joint check, such first man out shall be paid a call of four hours at the pro rata rate."

-4-

 The findings and the Award are clearly erroneous and contrary to the Agreement and other evidence of record. For these reasons we dissent.

      Therefore Award No. 6440 is palpably erroneous.


                              E. J. HAESAERT


                              D. S. ANDERSON


                              W. O. HEARN


                              E. J. MC DERMOTT


                              R. E. STENZINGER