Foxes 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
73E8
SECOND DIVISION Docket No.
7196-T
2-BNI-MA-'77
The Second Division consisted of the regular members and in
addition Referee Abraham Weiss when award was rendered.
( International Association of Machinists
( and Aerospace Workers
Parties to Dispute:
(
( Burlington Northern Inc.
Dispute; Claim of Employes:
Claim of the International Association of Machinists and Aerospace
Workers that the Carrier:
1. Violated Rules
27, 50
and
51
of the Shop Crafts' Agreement
effective April 1, 1970 when it assigned Carmen to install and
test an Albs Chalmers diesel engine on Passenger Car 1+15 on
August
8, 1975
in King Street Coach Yard.
2. Compensate Machinist E. Clementz and Advanced Apprentice D. Hawkins
four
(4)
hours each computed at staight-time rate on August
8,
1975
in consequence thereof.
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 axe 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 waived right of appearance at hearing thereon.
Claimants in this case are two machinists who assert that the Carrier
violated the Agreement effective April 1,
1970,
specifically Rules
27, 50
and
51,
by assigning Carmen to install and test a diesel engine on a
specified passenger car at the King Street Passenger Station, Seattle,
Washington, on August
8, 1975.
This dispute involves a jurisdictional question and the Brotherhood
of Railway Carmen and the International Brotherhood of Electrical Workers
are parties in interest which have elected to file a submission.
The positions of the three Organizations--Machinists, Carmen, and
Electrical Workers--are siumrarized below.
Foam 1 Award No.
7368
Page
2
Docket No.
7196-T
2-BNI-MA-'77
The petitioner, International Association of Machinists, maintains that
under the agreement, machinists have the right to install and test internal.
combustion engines on passenger cars by virtue of the Machinists Classification
of Work Rule (Rule 51) and Decision
34
(an agreement between the Machinists,
and the Carmen dated April
27, 1966).
Rule 51 provides that "Machinists' work shall consist of .y. assembling,
maintaining, dismantling and installing locomotives and engines (operated by
steam and other power) ...."
Rule 51, Petitioner asserts, by assigning work to Machinists, preclude,
any jurisdictional dispute, since the work in dispute is assigned to the
Machinists' craft. Consequently, a practice, claimed by the Carrier,
inconsistent with the Rule, does not determine application of the Rule.
Decision 31+, designed by agreement reached in
1966
between the Machinists
and Carmen to settle questions concerning the scope of their respective
Classification of Work Rules on the former Great Northern Railway, one of
the three major carriers involved in the merger that resulted in the present
Burlington Northern, Inc., specified that "the installation, ... testing ...
of internal combustion engines used in connection with generators for light,
and power on passenger cars is Machinists' work." Decision
34
also provided.
that: (1) an employee on "full time assignment" on such work "shall retrain
on such assignment and continue to perform said work until he may vacate the
assignment ...."; and (2) "this understanding is to apply only on this
railroad and not to be considered or used as a precedent affecting any other
railroad."
The Machinists' Organization also cites a letter dated December
6,
1972,
in which the Carrier, Burlington Northern, implemented three other
jurisdictional settlements between the Machinists and Carmen, reached on
the same date as Decision
31+.
These jurisdictional agreements were applicable
on the former C, B. and Q. Railroad, which was later merged into the
Burlington Northern. The Carrier's letter of December
6, 1972
states,
however, that "acceptance of these three settlements ... is with the
understanding that the provisions thereof axe applicable only at the actual.
points specified, or on the former CB&Q, territory for which the agreements
were actually prepared."
The Machinists contend that the Carrier's actions with respect to these
three other jurisdictional settlements, subsequent to the merger of the
three prior carriers, "established a precedent fox the application of an
agreement on a segment of the Carrier."
When the Machinists reopened the jurisdictional issue on June
2, 1975
(Carrier's Exhibit No. 19), the General Chairman of the Carmen responded
that the jurisdictional settlement could not be applied on the merged
Burlington Northern and that the Machinists' Organization would have to
submit a dispute applicable to the Burlington Northern "in order that such
Form 1 Award No.
7368
Page
3
Docket No.
7196-T
2-BNI-MA-'77
Awards would be uniformly applied over the entire Carrier." He added:
"Any other action on the part of the Machinists and the Carrier would be
violation of Rule
98(c)
of the Agreement." (Carrier Exhibit No.
20)
Rule
98(c) is
the outgrowth of negotiations between the parties prior
to and in anticipation of the merger of the former carriers now comprising
the Burlington Northern, so as to arrive at a consolidated agreement
covering all of the Shop Craft Organizations. Rule
98(c)
provides:
"It is the intent of this Agreement to preserve preexisting rights accruing to employees covered by the
Agreement as they existed under similar rules in
effect on the CB&Q, NP, GN and SP&S Railroads prior
to the date of meager; 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."
In a subsequent letter to the Machinists, dated February
26, 1976,
the
Carmen advised the Machinists' General Chairman that "jurisdictional
settlements on the Great Northern cannot be properly applied at this late
date on the Burlington Northern, unless all parties to such settlement are
in agreement." (Employees' Exhibit
C-3).
In brief, the Railway Carmen maintain that the Decision
34
jurisdictional
settlement between it and the Machinists is not valid, since it was never
accepted nor implemented.
The Electrical Workers assert that their .rights and jurisdiction are
affected by the Machinists-Carmen agreement, referring specifically to Rules
76
(Electricians' Classification of Work) and
93
(Jurisdiction) of the
current Agreement. The claim is made that the Machinists' Classification
of Work Rule makes no reference to engines on passenger cars (but rather to
engines in locomotives); that the Machinists made no attempt to resolve the
jurisdictional issue with the Electrical Workers; that the work in question
is currently performed by the Electrical Workers or by the Carmen; and that
the Machinists' claim to installation and testing of internal combustion
engines on passenger cars is not substantiated.
The Machinists deny the Electrical Workers' assertions and, in addition,
state that as an affiliate of the System Federation in
1966
when Decision
34
was reached, the Electrical Workers actively participated in negotiations
with the Carrier without asserting any right to do the work specified in
Decision
34.
The Carrier requests dismissal or denial of the claim on the following
grounds:
Form 1 Award No.
7368
Page
4
Docket No.
7196-T
2-BNI-MA-'77
1. Petitioner must show that the work in dispute must be performed
by machinists on an exclusive basis system-wide on one of the
railroads which now comprise the Burlington Northern, or that the
work is reserved to the machinists' craft by a clear and unambiguous
rule "that is in no way limited by the interaction of the balance
of that Agreement."
2. Machinists do not have the exclusive right to work at the situs
ox system wide on the former Great Northern. Carrier records
reflect that carmen have always installed such motors at the King
Street Station on the former Great Northern. (Carrier Exhibit 2).
Such work, the Carrier maintains, has been done almost daily by
carmen at King Street Station before and after
1966
(the date of
Decision
34)
and subsequent to the effective date of the current
Agreement
(April
1, 1970).
Petitioner did not deny that caxznen
are doing the work at King Street Station.
3.
The Petitioner has to meet the criterion that the work it seeks
to perform must have been performed system wide, and no such
evidence has been presented.
4.
The Carrier is not bound by jurisdictional settlement reached
between two Organizations unless and until it accepts such
settlement. The Carrier has never accepted the jurisdictional
agreement between the Machinists and Carmen embodied in Decision
34.
j. Decision
34
was not raised on the property during the handling of
the claim. Therefore, this Board has no authority to consider it.
6.
The principle of equitable estoppel applies, in view of
Petitioner's long-standing failure to contest the assignment of
the work in dispute.
7. The Machinists have not exhausted their remedy in Rule
93
dealing,
with jurisdictional disputes and hence this Board should dismiss
this claim for lack of jurisdiction.
The outcome of this case turns on whether the work in question falls
within the clear and unambiguous language of the Agreement.
To sustain their contention, petitioning Organization must show either,
that the express terms of the Agreement grant them exclusive right to the
work at issue, or that absent such express grant, they have as a matter of
custom and practice always, and exclusively, performed this work.
1. The jurisdictional dispute settlement of July
6, 1966,
between the
Machinists and the Carmen concerning the work of installing and
testing internal combustion engines on passenger cars on the
Form 1
Page
5
Award No. 7368
Docket No.
7196-T
2-BNI-MA-'77
former Great Northern Railway (referred to as Decision
31+) was
arrived
at pursuant to Rule
91+,
Jurisdiction of the Great Northern
Agreement. Rule
94
of that Agreement is identical to Rule
93
of the current Burlington Northern Agreement effective April 1,
1970.
Rule
93
provides that "existing practices shall be continued
without penalty until and when the Carrier has been properly notified
and has had reasonable opportunity to reach an understanding with
the organizations involved."
It is clear that no understanding has been arrived at, pursuant
to this rule, between the Carrier and the Organizations so as to
effectuate the jurisdictional dispute settlement. It is equally
clear that absent such understanding, existing practices as to
jurisdiction and work assignment "shall be continued without
penalty."
This Board has often ruled that it may not assume jurisdiction
of a dispute between two or more Organizations as to who is
entitled to perform certain work unless and until the Organizations
have exhausted the procedures under existing rules governing
jurisdictional disputes. Rule
93
of the current Agreement
(Rule
94
of the prior agreement with Greet Northern) prescribes
such procedures, which have not been complied with.
Rule
93
calls for a two-step procedure to resolve disputes over
jurisdiction. The Organizations claiming the work must first
settle the issue between themselves. Then, they must negotiate
with the Carrier to secure management's acceptance of the proposed
jurisdictional settlement. All of the parties involved--Organizations
and Carrier--must be in agreement. Only then can work be assigned
or transferred from one craft to another.
The record is also clear that the urisdictional settlement between
the two organizations (Decision
3~-~
iras not accepted by the Carrier.
although the Machinists tried in
1966, 167
and
1968
to gain its
acceptance by the former Great Northern Railway Company. (Carrier's
Exhibit No.
13)
The last conference between the Petitioner and
the Carrier prior to the merger on March
3, 1970
was on September
30, 1968.
As of the date of the merger the present Carrier
(Burlington Northern) had not indicated acceptance of the
jurisdictional settlement between the two organizations on the
former Great Northern. Petitioner reopened the issue on June
2,
1975.
2. Rule
93
discussed above must be read in conjunction with Rule
98(c)
of the April 1,
1970
Agreement. The record clearly indicates
that the Machinists have not performed the work in dispute at the
King Street Station. Indeed, the basis of their claim is that
machinists were not assigned such work at that location. Under
Form 1 Award No.
736$
Page
6
Docket No.
7196-T
2-BNI-MA-'77
Rule
98(c),
therefore, "pre-existing rights" are preserved to
members of these crafts other than Machinists who performed the
work prior to merger, and who are currently performing the work,
to continue to perform such work. Rule
93,
as previously noted,
provides for "existing practices" to be continued absent settlement
of craft jurisdiction disputes between contesting organizations and
"Carrier ... understanding with the organizations involved."
This very case, and the submissions of the Carmen and Electrical
Workers, indicate that the craft organizations involved have not
as of this date resolved the question of the work jurisdiction at
issue.
The purpose of Rule
98(c) is
to preserve pre-existing rights
accruing to the employees covered by the current agreement as
they existed in effect on the Great Northern prior to the date
of the merger into the Burlington Northern.
3.
Petitioner relies heavily on Rule
51,
the Machinists' Work
Classification Rule, as assigning the work in question to members
of the Machinists' craft. For work to fall within the exclusive
jurisdiction of a craft, the grant of jurisdiction must be provided
through language that is clear, definite, and unambiguous. In
the case before us, the Work Classification Rule on both the former
Great Northern and on the merged Burlington Northern make no
explicit reference to installing and testing engines on passenger
cars--the crux of the instant dispute. Rule
51
does not
unequivocally cover the work involved as exclusively machinists'
work. Hence, Rule 51 must be read in conjunction with Rule
98(c),
which preserves the "pre-existing rights" of other employees on
the carriers which were merged into the present Burlington Northern.
Since there is no clear and unambiguous rule which allocates the
disputed work to the Petitioner Organization, it must proffer
proof that members of the Machinists' craft have historically and.
exclusively performed the work of installing and testing engines
on passenger cars on the former Great Northern, which was later
merged with other carriers into the Burlington Northern. The
Petitioner has failed to meet the burden of proof with respect to
exclusivity and system wide application. In fact, Petitioner's
request to the Carrier (Great Northern) on October
9, 1967,
to
adopt and accept the proposed jurisdictional settlement between
the Petitioner and the Carmen and to apply the settlement "on the
entire system," constitutes clear evidence that the Petitioner
did not have the exclusive right system wide, to the work in
question, and specifically at the King Street Station. The
Machinists' submission in the case before us states that members
of the Machinists' crate do not perform the work in question at
the King Street Station.
Form 1 Award No.
7368
Page
7
Docket No.
7196-T
2-BNI-MA-'77
Since, as noted above, the Machinists' Classification of Work
Rule is silent as to craft jurisdiction over installing and testing
engines on passenger cars, we must look to past practice as to the
Rule's meaning and application. The record shows that other than
machinists have been used to perform such work, at the site to
which the claim refers, over an extended period of time.
The Petitioner's claims regarding its jurisdictional right to the:
work
in question have been denied by the Carrier and the two
other Organizations involved in this dispute.
Petitioner therefore bears the burden of sustaining its claim,
by a showing of clear convincing evidence, that it has exclusively
performed the work at issue on a system wide basis. Petitioner
has not met the burden of proof.
Members of the Machinists' craft have undoubtedly performed work
substantially identical with or similar to that here in dispute, at various
times and at various locations, for the predecessor carriers and for the
current carrier--but not, according to the record, on an exclusive or system
wide basis. The performance of this work under such circumstances does not,
confer on such employees, the exclusive right to perform all such work nor
does it constitute proof of such exclusive right.
The fact that both Carmen and Electricians have filed ex pane submissions
maintaining that they have performed the disputed work in the past, that
they are currently performing the work (Carmen, supported by the Carrier,
emphasizes that it has been doing the work at the location of the claim),
and that their Classification of Work Rules reserve such work to their
respective crafts constitutes clear evidence that a jurisdictional dispute
exists.
The fact that in
1966,
the Machinists and the Carmen met to resolve
their jurisdictional dispute shows that the Carmen were doing the disputed
work at that time; otherwise, there would be no need to agree on jurisdiction.
That jurisdictional settlement on the Great Northern was not accepted by
the Carrier, whereas those applicable to the former CB&Q, also merged into
the present BN, were accepted and made operative.
Failure or inability to meet, discuss, and attempt to reach agreement
with the Carrier (and, as the record indicates, with other Organizations on
the merged Carrier) stands as a bar to our consideration of the merits of
Petitioner's claim. We consider that this Board has no jurisdiction to hear
and decide the merits, since the requirements of Rule
93
have not been
complied with before bringing this action.
Form 1
Page
8
Award No. 7368
Docket No. 7196-T
2-BNI-MA-177
We therefore hold that this case is prematurely presented to this Board,
not only because Rule 93 has not been followed fully, but also under the
provisions of Section 3, First (i) of the Railway Labor Act, as amended,
and Circular No. 1 of the National Railroad Adjustment Board.
We will decline to accept jurisdiction over this dispute. It will be
dismissed without prejudice.
A W A R D
Claim dismissed for lack of jurisdiction.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By _\~/
~ r
~V i.~V.
·---'1o emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 14th day of October, 1977