FOM
NATIONAL PLAIZROAD ADNSTMM
'BOARD A
SKIM DIUISIOR
2-LT-USWA-'77
The Second Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
( UnitE:d Steelworkers of America,
( A. F. of L. - C. I. 0,
Parties to Dispute:
(
( The Lake Terminal Railroad Company
Dispute: Claim of Employes:
(1) That under the controlling Agreement, other than a qualified
Speedswing Operator from the Car Repair Department was used to
operate the Speedswing, to unload railroad car wheels on June
13, 1975,
in violation of Rule 16(d).
(2) That accordingly, the Carrier be ordered to compensate Car
Repairman D. Kepic,
#1458,
a qualified Speedswing Operator who
was willing and available to perform the work in question, eight
(8)
hours pay at the time and one-half rate, in addition to all
other earnings, as penalty for this violation.
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
.
Parties to said dispute waived ,right of appearance at hearing thereon.
This dispute concerns use of a Maintenance of Way employee to unload
wheels at the Diesel Shop. The Organization cites a violation of that
portion of the scope rule which reserved "... any work connection with railroad cars..." and urges our consideration of Third Division Award
20703.
In the mentioned Award, the Referee noted tYe,t "...the assignment of
a Car Repairman to operate the speedswing machine when performing work of
the Car Repair Department was proper" and denied the claim of Maintenance
of Way employees. But, that Award does not suggest that the Carrier urged
that Car Repairmen had exclusive ;^ights to the work in question.
Form 1
Page 2
Award No. 7248
Docket No. 7077
2-LT-USWA-'77
We are aware that the prior dispute concerned a different shop than
the one involved in this dispute, and we have considered the Awards cited
by Carrier dealing with exclusivity. While this record is rather sketchy
concerning the precise matters considered on the property, we have noted
an employee affidavit which, we conclude, supports the Organization's
conclusion of historical work performance. Although Carrier asserts that the
same document supports its position, we are inclined to disagree.
We stress that this dispute is limited solely to this record, and to
the evidence which we have reasonably available to us. We do not find,
however, any basis in this record for awarding pay at the overtime rate.
Thus, we sustain the claim for pro-rata payment.
A W A R D
Claim sustained, in accordance with the Findings, above.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
7By
;osemarie Brasch - AcIministrative Assistant
Dated at Chicago, Illinois, this llthday of March, 1977.