Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7082 SECOND DIVISION Docket No.
6856-T 2-BNI-sM-`76 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. The Carrier violated the provisions of the current agreement
when
they improperly assigned other than Sheet Metal Workers, the.'
assembling of two pipe racks made of 2 inch pipe 21 feet long and
10 feet high, at Dale Street Shops tin August 27, and 28,
1973.
2. That accordingly the Carrier be required to compensate Sheet Metal
Workers Irvin Maxstad and Elmer Osell each in the amount of eight
(8) hours pay at the prevailing rate for each of the following
days, August 27, arid 28,
1973.
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 ox 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, Sheet Metal Workers I. Marstad and E. Osell axe employed
at the Carrier's Dale Street Shops located in St. Paul, Minnesota, a location
on the former Great Northern Railway Company. On the claim dates Material
(Store) Department employees, represented by the BRAC organization, assembled
two pipe racks made of two-inch pipe in the Material Department at Dale Street
for their own use.
The Organization contends that the work of assembling metal pipe racks
belongs exclusively to SMWIA by the clear and unambiguous language of Rule 71
of the Agreement.
_,
Form 1 Award No. 7082 Page 2 Docket No. 6856-T 2-BNZ-sM-'76
The Carrier contends that no such exclusive right exists; and contends
that such work has beer. done by many other crafts on the ,property; and in
particular in the Material Department at Dale Street by clerical employees.
The Carrier further contends that the SMWIA employes are attempting
to
:axnd
their work jurisdiction contrary to Rule 98(c).
The BRAG, Boilermakers and Blacksmiths, and BMWE organizations were given
third party notices that this dispute was pending before the Board. The BRAG
and BMWE organizations did not file a submission. The Boilermakers filed a
submission and withdrew from the dispute at the referee hearing.
We incorporate by reference Award 7083, decided this day,
for
discussion of the impact of Rule
98(c).
Rule 71 of the current Agreement is
identical in every material particular to Rule 72 on the former GN Railway with
the exception that BN Rule 71 includes the word sand. Since BN Rule-71 is
more readily available for reference than GN 72 for those reading this award,
and since Rule 71 is the current rule of the Agreement, it is set out as
follows, as emphasized by the SMWIA in their Submission pp. 2 and
3:
"Sheet metal. _Workexs' 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, cuttings threading, brazing,
connecting and disconnecting of air, watery has, 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. Emphasis supplied)
The Organization structures its case on the contention that the clear and
unambiguous language of Rule 71 (GN 72) grants the SMWIA the exclusive right
to the assembling of metal pipe racks. The Organization does not submit
evidence of an exclusive system-wide past practice on the GN: it relies on the
clear language of Rule 71. The outcome of this case turns on whether or not
the work in question falls within the clear and unambiguous language of the
Agreement.
The clear and unambiguous language the SMWIA.relies on is:
"Sheet metal workers' work shall consist of tinning, coppersmithing
and pipefitting in shops, yards building ...."
Form 1 Award No. 7082 Page
3
Docket No.
6856-T 2-BNI-SM-'76
From the entirety of Rule 71 (GN 72) the Rule does not reserve the work
with all materials made 'of pipe to SMWIA employer (as does this very rule
reserve the assembling of materials of 10 gauge and lighter--used for metal
shelves--in the companion case decided this day). Nor does the rule set out
in clear and unambiguous language that all pipe work is reserved to SMWIA
employer. Nor does the rule set out that the assembling of racks made of pipe
is work exclusively reserved for SMWIA employer.
The rule says "pipefitting". Pipefitting in this industry consists of
the segment of the sheet metal workers' craft dealing with the installation
and repair of piping systems. Various piping systems would be air, water, gas,
oil, sandq
steam, certain
vent systems
etc. These piping systems exist to
convey substances from one point to another. The contention that the assembling
of metal pipe racks made of standard pre-cut pipes is clearly and unambiguously
".pipefitting" must fail.
Further, for the record and not determining the outcome of this case, the
Employer Exhibit F, page
7,
the SMWIA contends that:
"The assembling of these pipe racks is pipefitting work which
consists of the cutting, fitting, threading and yvelding of
two-inch pipe which is definitely spelled out in Rule
71."
The Organization has the burden of proving its case. Mere
assertions will.
not serve as proof. The pipes in question were pre-cut standard length. The
Carrier contends that the pipes were clamped not threaded; and that there was
no "fitting" involved. There is no evidence offered by the Organization that
cutting of pipes was involved. There is no evidence offered by the Organization
that the pipes were welded. The Carrier's evidence is that there was no
1
"threading" and "fitting. '
Finally, the Organization contends that in Awards
5618
and
654+
it was
held that SMWIA employer had the exclusive contractual right to the assembling
of metal shelved racks. We found so as well, in the companion case decided
this day. If the SMWIA employer have the exclusive right to assemble metal
racks, they argue, they should have the exclusive right to assemble pipe racks_
This Board has strictly limited authority. It is not within our authority
to allocate work based on our own sense of consistency or equity. We are
empowered only to interpret the Agreement of the parties. We have no authority
to add to or alter the Agreement in any way. It should be pointed out as well
that while the SMWIA employer do not have exclusive right to assemble metal
pipe racks, they are not precluded from doing this work; and may be assigned
such work at the Carrier's discretion.
A W A R D
Denied.
Form 1 Page
Attest: Executive Secretary National Railroad Adjustment Board
By
osemarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 14th day of July, 1976.
Award No. 7082 Docket No. 6856-T 2-BNI-SM-'76
NATIONAL RAILROAD ADJUSTMENT
BOARD
By Order of Second
Division
DISSENT
OF FOR MEMBERS TO AWARD NO. 7082 - REF8R8E TWOMZY
It seems stranste to this oxaaanfzatinn that
the Mainrftv fn
Aware No. 7082 should quote a portion of the meaning of the work
"pipefitting" as contained in the
AMERICAN HERITAGE DICTIONARY
:, r: : ,'. _ . . :.:.~
OF THE ENGLISH LANGUAGE - 1973
and ignore the most important
meaning given t® the word as it relates to this instant dispute.
On page 997 of the: above dictionary, the definition of the ward
"pipefitting" is given as "1(a) the act or work of joining pipes
together".
The
Majority
refers
to the Sheet Metal Workers' Craft dealing
"with the installation and repair of
piping
systems", as given in
the above dictionary
1(b)
and does not refer to "pipefitting" as
involved in this dispute. Pipes that are"joined together", may be done in a number of
ways including the use of clamps, and the Majority are in grievous
error when they attempt to confine the Sheet Metal Woskea~, to the
"installation and repair of piping systems". When the Majority states "Nor does the rule set out in clear
and unambiguous language that all pipe work is reserved to the
SMWIA employer" they are in very serious error. How can "pipe work"
be done without "Pipefitting", as contained in the Rule, taking
place?
If the Majority continues to bolster their decisions with
obscure definitions and in applying deviate reasoning to arrive at
a decision, they do violence to the spirit and intent of the Board
to function as a reasonable arid fair minded body. This dispute should have been resolved in a very different
manner and the claim should have been sustained an presented.