Form 1 NATIONAL RAILROP.D ADJUSTMENT BOARD Award No.
6867
SECOND DIVISION Docket No.
6663
2-BN-SM-'75
The Second Division consisted of the regular members and in
addition Referee David P. Twomey when award was rendered.
( Sheet Metal Workers' International
{ Association
Parties to Dispute:
(
( Burlington Northern, Inc.
Dispute: Claim of Employes:
1. That the Burlington Northern Inc. at Vancouver, Washington,
violated the controlling agreement on Oct.
5,
1972 through
Oct. 26, 1972 when that Carrier assigned other than sheet
metal workers to perform the piping on the Impco tank for the
sanding facility at the Vancouver shops in Washington.
2. That accordingly, the Burlington Northern Inc. be ordered to
compensate the following sheet metal workers, Glenn Nunnenkamp,
G. A. Schubothe, P. E. Phillips, L. P. Caudle, W. R. Scott and
K. G. Harrington in the amount of forty-eight
(!+8)
hours of pay
at the overtime rate to be equally divided among the claimants.
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,
193%+.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
The Claimants are Sheet Metal Workers at Vancouver, Washington. The
basis of the Petitioner's comblaint is that the Carrier violated Rule 71
of the current Agreement when it assigned Maintenance of Way employes the
duties of installing an Impco tank for the purpose of supplying sand to
the two sand towers at Vancouver, Washington. The Petitioner contends that
the pipe work involved in the installation should have been performed by
employes of the
S?N14IA
craft. Both the Carrier and the Brotherhood of
Maintenance of Way Employes disagree.
Form 1 Award No.
6867
Page 2 Docket No.
6663
2-BN-SM-'75
Rule 71 states:
"Rule 71. CLASSIFICATION OF WORK
Sheet metal workers' work shall consist of tinning,
coppersmithing and pipefitting in shops, yards,
buildings and on passenger coaches and engines of
all kinds; the building, erecting, assembling,
installing, dismantling and maintaining parts made
of sheet copper, brass, tin, zinc, white metal, lead,
black, planished pickled and galvanized iron of 10 gauge
and lighter, including brazing, soldering, tinning,
leading, and babbitting, the bending, fitting, cutting,
threading, brazing, connecting and disconnecting of
air, water, gas, oil, sand and steampipes; the
operation of babbit fires; oxyacetylene, thermit
and electric welding on work generally recognized as
sheet metal workers' work, and all other work
generally recognized as sheet metal workers' work."
Rule
98(c)
states:
"(c) It is the intent of this Agreement to preserve
pre-existing rights accruing to employees covered
a
by the Agreements as they existed under smiliar rules
in effect on the CB&Q, NP, GN and SP&S Railroads prior
to the date of merger; and shall not operate to extend
jurisdiction or Scope Rule coverage to agreements
between another organization and one or more of the
merging Carriers which were in effect prior to
the date of merger."
It is the purpose of Rule
98(c)
to preserve preexisting rights
accruing to the employes covered by the Agreement as they existed in
effect on the S P & S Ry. Co. prior to the date of merger. The SMWIA
employes' rights are thus both preserved and limited to those that
existed on the former SP&S Ry. Co., and System Fed. No. 7. The Scope
Rule of that Agreement stated:
. "It is understood that this agreement shall apply
to those who perform the work specified in this
Agreement in the Mechanical Department of these
Companies."
Form 1 Award No. 6867
' Page
3
Docket No. 6663
2-BN-SM-'75
Rule No. 86, the Classification of Work Rule, states in pertinent
part:
"(d) Sheet Metal Workers--first class: Qualified and
regularly assigned to do all general work in
connection with sheet metal ten gauge and lighter,
pipe and plumbing work, including steam, gas and
water systems on passenger and other cars.
Manufacturing miscellaneous tinware and copperware. Jacket repairmen qualified to lay out, cut,
finish, repair and apply locomotive jackets. Manufacturing and applying clamps and other work requiring similar . . . . . . . . . . . . . $2.35
per hour.
(e) Tinners--reclamation: Reclaiming tinware,
lanterns and lamps of all kinds; cleaning and
repairing air and hand sanders, sand pipes and
clamps; babbittmen operating babbitt fires in
connection with sheet metal workers' work . . .
$2.26 per hour."
~,~ (Emphasis Supplied)
There are two ways for the SMWIA to successfully substantiate the
instant claim: (a) by demonstrating that clear, definite and unambiguous
language in a rule of the parties, unencumbered by other rules of the
same agreement, grants the work in question to the SMWIA, or (b), demonstrate that the work in question has historically and exclusively been
performed by the SMWIA employes system-wide.
The Petitioner argues that Rule 71 contains clear, definite and
unambiguous language granting the work to the SMWIA employes, and based
on Awards 2357, 2372, and 6056, they contend that we should sustain the
claim. If no other rule of the Agreement restricted the application of
Rule 71, we would agree with the Petitioner and sustain the claim.
However, the application of Rule 71 in the instant case is restricted
by Rule 98(c) of the Agreement. As discussed previously, because of
Rule 98(c) we must return to the former Agreement of the SP&S Ry. Co. to
ascertain whether or not a rule existed in that Agreement that granted
the work in question to SMWIA employes with the requisite clear, definite
and unambiguous language. Rule 86(d) is general in nature, referring
only to "pipe and plumbing work". It does not contain the necessary
specificity to constitute the clear, definite and unambiguous language
required to confer of itself alone the exclusive jurisdiction of installation of the piping work for an Impco Tank upon the Petitioner. Rule
86(d), quoted above, is in no way similar to the clear, definite and
unambiguous language of Rule 109 in Awards 2357 and 2372 and Rule 302
in Award 6056, the Awards upon which the Petitioner relies. Nor does
Form 1
Page 4
Award No. 6867
Docket No. 6663
2-BN-SM-'75
Rule 86(e), quoted above, which deals with "Tinners-reclamation;" and the
"cleaning and repairing of air and hand sanders, sand pipes and clamps,"
apply in arty way to the instant case which deals with the installation
of
piping work for an Impco tank.
Since the petitioning Organization has not demonstrated to this
Board that the work in question is reserved to the Organization exclusively
by clear, definite and unambiguous language of a rule, unencumbered by
other rules of the agreement, then in order for us to sustain the instant
claim the Organization must demonstrate that piping work on sanding
facilities has historically and exclusively been performed by the SMWIA
craft system-wide. By system-wide we mean that the burden of proof is
on the Organization to show exclusivity of practice system-wide on the
former SP&S Ry. Co. We conclude that the Petitioner has clearly not
met its burden of proof concerning a system-wide practice of installing
the pipe work on sanding facilities on the former SP&S Ry. Co. Therefore
we must deny the claim.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
semarie Brasch - nistrative Assistant
Dated
at
Chicago, Illinois, this 30th day of
May,-1975.
,,, LABOR MEMBER'S DISSENT TO AWARD NO. 6867
ADOPTED MAMAY 19'5
A
The majority are in error and the referee is narrow in
his interpretation of existing rules. The Sheet Metal Workers did
not ask for -an interpretation of an existing rule, they asked
only for work to be returned to them that they proved they had
performed prior to the merger.
The referee places too narrow of an opinion on his asser
Zion that the Sheet Metal Workers International Association, can
- c
v..
Cuccessfully substantiate the claim based only in two ways:
LLJ r-a
V :4A)
Pipa and plumber's work is clear, definite and unzunbiguous
r_6~
(4anguage and (B) The Sheet Metal Workers International Association
dice
demonstrate that the work
in question
has historically and
exclusively been performed by them at this location.
The claim did not encompass any other locations except the
one in the instant claim. If the claim had been to award the
work to the Sheet Metal Workers International Association on a
system wide basis, it would have been presented on that basis.
It was not, therefore, the majority and the referee are in
error. The Claim
should
have been sustained.
M. J. Cullen
Labor Member - Second Division