Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7+09
SECOND DIVISION Docket No.
7319
2-BRCofC-CM-'77
The Second Division consisted of the regular members and in
addition Referee James C. McBreaxty when award was rendered.
_ ( System Federation No.
6,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Caxmen)
(
( Belt Railway Company of Chicago
Dispute: Claim of Employes:
1. The Belt Railway Company of Chicago hereinafter referred to as
the Carrier is and has been in violation of Rules
18
and
93
of
the current working agreement as well as the September 25,
196+
Agreement by contracting out the wrecking and retailing work
performed on its property.
2. That the Carrier be ordered to compensate the following named
Carmen, G. Marrero, J. Lopez, A. Hensley, T. Sipple and R.
Tantillo, hereinafter referred to as Claimants, for four hours
and thirty minutes
(4
hxs.,
30
min.) at the straight time rate
each for the violations occuring on May 12,
1975.
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 waived right of appearance at hearing thereon.
By Bulletin dated March 21,
1975,
Carrier abolished all seven
(7)
wrecking crew fobs effective March
30, 1975,
and has since contracted with
outside concerns to perform wrecking and retailing service on its property.
According to Carrier, the wrecking derrick to which the seven
(7)
carmen had been assigned, is a steam operated machine built in April,
1828.
Carrier states that the only use made of this derrick crane for a
number of years, both prior to and subsequent to the abolishment of the
positions in question, has been small jobs of load adjustments rather than
heavy wrecking service. Carrier's wrecking derrick has poor mobility, and
at the scene of a derailment, it has limited maneuverability until the track:
forces rebuild the railroad. According to Carrier, modern off-track equip-
Form 1 Award No. 7.09
Page 2 Docket No. 737-9
2-BRCofC-CM-' 77
went can be dispatched via highways; can maneuver in and around derailed
quipment; and can handle retailing operations before Maintenance of Way
forces even begin to restore the rails.
The above background information helps to put the events of May
12, 1975 in perspective. On May 12, 1975, two (2) cans - P. R. R. # 601+53
and T.T.A.X. # 972905 were involved in Carrier's West Yard, # 5 Approach.
The Isringhausen Railroad Specialists, a private contracting company, was
called at approximately 9:30 AM, and performed all the necessary work
(such as laying blocking, hooking cables and chains, rigging, and other
related work), in the process of retailing these two (2) cars. The job
was completed at approximately 1.:30 PM, at which time the private contractor
departed the scene. Petitioner alleges the above-named Claimants were
available to perform this wrecking service, but Carrier did not call them.
It is the contention of Petitioner that Rules 18 and 93 of the Agreerent confer on the Garments craft the exclusive right to perform alt wrecking
and retailing work performed on Carrier's property.
Rule 93 of the current working Agreement reads as follows:
Rule 93 - WRECKING
CREWS
"Wrecking crews, excepting wrecking derrick engineers,
shall be composed of regularly assigned carmen when
available.
Wrecking derrick engineers will be governed by the special
rules governing carmen while in wrecking service.
In accordance with present practice, wrecking crew performing
wrecking service at locations outside of Clearing Yard will
be paid for meal period regardless of whether work is
performed or not performed during that period." (Emphasis added)
Rule 18 - ASSIGNMENT
OF WORK
"None but mechanics or apprentices regularly employed as such
shall do mechanics work as per special rules of each craft.
In compliance with the Special Rules included in this
Agreement, none but mechanics and their apprentices in
their respective crafts shall operate oxyacetylene, thexmit or
electric welders; where oxyacetylene or other welding processes
are used, each craft shall perform the work which was generally
recognized as work belonging to that craft prior to the
- introduction of such processes, except the use of the cutting
torch in wrecking service." (Emphasis added)
Form 1 Award No.
7+09
Page 3 Docket No. 7318
2-BRCofC -CM- ` 77
Carrier argues, however, that the above cited rules do not specify
or reserve wrecking or retailing work to the craft and class of Carmen.
In addition, Carrier notes that wrecking service work is not covered in
Rule gl - Classification of Work.
Rule gl - Classification of Work, reads as follows:
Rule
91
- CLASSIFICATION OF WORK:
"Carmen' s work shall consist of stripping, building,
maintaining, painting, upholstering and inspecting all
passenger and freight cars, both mood and steel; planning
mill, cabinet and bench carpenter work, pattern and flask
making, and all other carpenter work in shops and yards;
building, repairing and removing and applying locomotive
cabs, pilots, pilot beams, running boards, foot and head
light boards; tender frames and trucks; pipe and inspection
work in connection with air brake equipment on freight cars;
applying patented metal roofing; repairing steam heat hose
for locomotives-and cars; operating punches and shears doing
shaping and forming; hand forges, heating torches in
connection with carmen's work; painting, varnishing, surfacing
lettering, decorating and cutting of stencils, all other work
generally recognized as painters' mock under the supervision
of the locomotive and car departments; joint car inspectors
_ (including taking records, for conducting transportation
purposes, of seals, commoditues or destination of cars),
safety appliance and train car repairers, and wheel record
keepers; oxyacetylene, thermit and electric welding work
generally recognized as carmen's work.
It is understood that present practice in the performance
of murk between the carmen and boilermakers will continue."
The above-cited Rules
18, 91
and
93
are the key rules which must be
examined to resolve the instant dispute.
Looking first at Rule 18, Petitioner notes that Rule 18 as presently
written, was negotiated on April
26, 1967.
Prior to that time, Rule
18
stated:
Rule 18 - ASSIGNMENT OF WORK
"In compliance with the Special Rules included in this agreement,
none but mechanics and their apprentices in their respective
crafts shall operate oxyacetylene, thermit or electric welders;
where oxyacetylene or other welding processes are used, each
craft shall perform the work which was generally recognized
as work belonging to that craft prior to the introduction of
such processes, except the use of the cutting torch in wrecking
service."
Form 1 Award No.
7+09
Page
4
Docket No.
7319
2-BRCofC-CM- ` 77
Petitioner argues that Rule
18,
before being amended, pertained only
to the use of welders by mechanics and their apprentices, with an exception
in regard to cutting torches in wrecking service. Now, however, amended
Rule 18 clearly places all work of the various crafts in the position of
being the work, exclusively, of the respective crafts.
Carrier, on the other hand, states that the first paragraph of current
Ruel 18 appeared in Rule
19
- Temporarily Assigned to Foreman's Position, as
the last paragraph. According to carrier, it had absolutely no meaning
as it appeared in Rule
19.
Therefore, the parties agreed to move it up to
Rule 18.
The Board finds that Rule
18
as presently written places mechanics
work set forth in the special rules of each craft, in the position of being
the work only of mechanics or apprentices "regularly employed as such,"
within each craft.
Now, Rule 90 through 104 of the current Agreement are all listed under
"C armen's Special Rules".
Rule
gel
is entitled, "Classification of Work", and under this rule,
no mention is made of wrecking service work, which would seem to indicate
that such work is not reserved exclusively to carmen, and Rule 18, therefore,
would offer no protection to carmen for such work.
Nevertheless, we must now turn to Rule
93
under the "Carmen's Special
Rules", which is entitled specifically, "Wrecking Crews".
It is in regard to the meaning of Rule
93
that Petitioner and Carrier
are really "on different tracks". Petitioner argues that Rule
93
(in
conjunction with Rule
18)
confers on the Carmen's craft the exclusive right
to perform all wrecking and retailing work performed on Carrier's property.
Carrier, on the other hand, believes that Rule
93
is expressly limited
to the assignment of regular C armen to work with the Belt wrecking crane.
To put it another way, regular Carmen must be used on when the Belt
wrecker is used, although not only on Belt property, but even when used
to perform wrecking service for another Carrier.
According to Carrier, Rule
93
is merely a "consist rule" only, that is,
a rule which says that _if or when you use the Belt wrecker, then and only
then, the wrecking crew must consist of carmen.
A careful reading of Rule
93, convinces the
Board that the Carrier's
interpretation of this Rule is essentially correct, namely, that it is
only when the wrecking derrick is used, that the wrecking crew must be
composed of Carmen. Note that the first sentence of Rule
93
says:
Foam 1
Page 5
Award No. 7+09
Docket No.
7319
2-BRCofC -CM-' 77
"Wrecking crews, excepting wrecking derrick engineers,
shall be composed of regularly assigned taxmen when
available." (Emphasis added)
The parties have agreed to specifically exempt "wrecking derrick
engineers" from being taxmen, although such engineers axe governed by the
special rules governing taxmen while in wrecking service
The language in Rule
93
is quite explicit in indicating that the parties
mere referring to those wrecking situations where Carrier's wrecking derrick.
would be used; otherwise the phrase "excepting wrecking derrick engineers"
would have been qualified by such language as, "when ox where applicable",
in order to cover all wrecking situations.
If there is any one principle of contract interpretation upon which
counts, arbitrators, and this Board axe agreed, it is that where no ambiguity
exists in the language of the Agreement, then the obvious intent of that
clear and unambiguous Agreement language governs and must be enforced. The
contracting parties must be presumed to have known what they were doing when,
they chose the language which they did to express their bargained intent.
In the absence of exclusivity to wrecking work under Rules 18,
91,
and
93,
the burden of proof is on the Petitioner to show that Carmen have
the exclusive ,right to such work by custom, tradition, and practice.
However, in the record before us Petitioner merely states that, "Carmen have:
historically performed the wrecking work on the Belt Rai7..,road'. This is a
self-serving statement, and does not constitute evidence of probative
value. Consequently, Petitioner has failed to show that Carmen have enjoyed.
the exclusive right to all wrecking service by practice.
Based on all of the foregoing analysis of both the language and past
practice, therefore, we must deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJtUTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By ' -
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 2nd day of Decmeber,
1977.
lomao,