~1~1~ts~Jl~'>J) !ilJ·~Tiilf'·'~',ZasC`)11J_11'D
A::v;aGd, _O.
75'(9
SECU1')1)
.TJ_LV.Lr
X43
Docket ,;o, 7? j (_rL
j.
· h,
t ()
The Second Division
c0?7.S'! ^st2CL
of
the
regular members arid in
addition
RCfC'ruC
TbeUCJnrc -i. O'Brien when award was
rendered.
Sheet Metal
7
k"
r.s' Ii:tCr?1nt'ional
.E)1,~. 'L"~lJL-.r:..i~
( Tiisocur'i. L5ci'f'ic f:aiLr<oz(3. C;xFs,-pany
171
r~·t~_ . C _a.'m of
075, HWY
thk"!,
,,,I
rl K. F. Prater c~,Ot (8) Von= each a-
The Second Division of
'l'?1. AdjT7S°_...E...
Board,
-,'on
the whole yecor& W.
The carrier or carriers aua the cqolnjf~: or
ea-ic,~)J(-,-,-es
dispute are .. iyiC't''L.._
r (.'_ y - t" _ c , 0-7
Ohio
Y
This Division
O-1'
the Adjla-,JWiC'.i;t, .hC`u.·.?'.3_
Ii~L:_.
jurisdiction over the
d:L:"' _ ....
1:`lVOiVt'u i1L.Y'e:L71.
W:C"(`'J1E,'
a to said dispute
T.'rel'C.
given
C).:CLr'
T1C)`v:i C.'.e C'' l1('.e'.?":!..Ia;;
thereon.
The
instant
E'1.^7_'a,
yiOL;7',_.'SC:C1.
by the
Sli'·'-'F`'i:
;`-'i:'.-f.
,C)1'1':C`)° , ~'.'l'O;~C '.?A1f:!:A,
i,
i ,..
011 J't'ty ~~1~ _(_9r(FJ, th.^. t_ v1'.i;`i.::4t a,,.iQTl:'C1 ,5;`o f:leC'i;'_"aC:i.C..._,.. ~nC: work of
Track, North T:s:Giu__ took. .:i'._a'?s...._. T1'=,_ work -.YTVOV . ._d the O: ,_ ..'O'=11V .'T,1.T!',
·e= - n; yn '1.1,. . . .._ ..·C .'o?;._1.°116.0. coil and L'14 J.r:;t..,_L.i._.(..I n.'_
of d, 17C.V',r CC5i1T4_W'E's._;01' 1t'...G_ , ,,.. __. Wf,.1'.. .,u ., . -.. L1:.. O! ,`c:t' 't:0 adapt the
Z.11 Tit31;:!T1:' those .t'.v?d-LuCLt;'.IO!": j:?°'.. Wt'C`'_.:!.ci_..1'!;.. fit, cLit arid _JL:L-)-e_-
this pipe, `t:.:. E7_t::__._.c'a?-'.-, cn·rr.ec'.t~i i;i.u_ van,xW'e ,:;,-. _ rC> t_:_ st.iio,, rul?clt
vT1,,s,'ur.; ' - iF ' unit ,.~.d i:ilt;,5't-'d with ":~_.-"Cad:z r'. :?;, on the three-ton u,:. .-CD'`ht,0:_i:
_.L7_. un 'cl' _ , '. ;z _', _
FO2'M
I Award No.
7579
Page 2 Docket No. Y337-T
2-10-SM-
48
The Cawrie.r :contends that the claim should. he dismissed under Rule
31-(b) of the contral_=Li nr; '. qweemant , cl.rv _ning that the orr,ani'cation failed
to appeal the decision of the h Aster
On1-un
ic Mllin .-i-xty
d3.~,_ys
i roan the
date of hi_ declination o1" the cla0-- Rule 31(b) reads, ire pert;.ner!t·3.'t,
as .follows:
t'(b) 1f a, disallowed cla.ir, or ~ri_e`c%e~tl.ct;: is to be
appealed, such appeal must b
E: 1n
writing r',nd
:IT
sla
be taken
with'-,.
60 days -_'ron the
rC^t?',..:-G
of notice
of and ti i
f'
d1S:~t._1..
..1G
and representative >:y_ the
_ i ; n
1
Carrier shall br,
T[j.Lt,l':__
:i7_
Lia
writing .,, within that
time of the of dc-cisllo--1.7~
The record contains
11o ._,.
Unce
that
the
~'~1' ·.Yl-, I<.-G~.C~YI
V.I_a~.",~:;.<1 I~l!!_-a 31(h)
.c.
t, _ M_
A, _ O'
_·1'' _ t
io'n I.;' .).'ttt. _ d
nted iii:
'te~i.,. _
- 1975,
_r· %lv :. ..7"
._mhanl.c
it;.V,:l's
declination
of the
ul.-,?'.. i _
certainly
n
within
·0
.. fron.
"_.'(:
t O-
Carrier's notice
,_l ,...llowanca. The c'_...
..:3
..a..
ther_.:.
_e.
u·
i.l. d "s required b' h.uK
31(b)· and is p_`opci.l.·',
iJufh.
e.
this
TDnna
for Thuc we will
,r_
1.):.oc aua to the n_w - .3
t,:
ow:
(-__ _.
c ~. . I
..:,
r, - .. ,_ . ,_ in
to t1r,
_ p,_ _ ·A-
C (;:_,.~._.C' .'G-C!'.c=C'
'.'!'iiY',.
.',~,.i.~_(..
..C.'.i._ - r
reads,
i11
perthsAt
pnI`;. a3 -'Ul1C'.;,...
ttSllM 1'..
:,Z Wo-rharsf
.'or= .... .t.,
consist of
411re
.ding.
brazing, connection
'.?1,7. '1.1
sCOnn^(;t7_ of air,
WAS"a .. ,
. ,r
s , o-i.~!_ arrci
_.r(t_:w.:n
i;i.pc;s . . .
pursuant to
third T_;_." tV
notice, the intcrna'hional
DraC0CYtloud
of
ElCc·
Y
n
si,;bmi,
.-ion
eGH·eVi-11; i·'.. : i:, the ...n: __ ?'_1 C='vz.`Gio:.
uY_Cal . ';0jr' ~s.~S M i . ~ _
was propcrly 8.,- s :i 'rnad. to C::: glny-., of the _,_~._e~ G3-'__C' _?1' ,. C~1^;~,.i'j: 'aua-er thc'-i 3°
Classification W. - 7_ , trod a t'.:anty-1'1ve. 'u'ar hisibry a.l Elect·ra _ _ :n;>
0 . '
Work =~_ .=:~,_1~. ~,
perf'orr:in; this di_>:~('`ced T;u3°.'...
The Carrier contends that work 5?
wori. which re`_uA._ .,_, the assen-_oliy,':~c.
d.i sase,.pr of C:oC:l1 , . M~S, 'J, 'e ~'p;ti !_ _.S tO br· a.6s_ d and
3,~l ~~ as; ;~c-1 - ~ .'r'2 3- 1-" ';'?,'~W_(~'~
d_LscSserbled, i)"...,.::1C._ l]'j ;:-.,_,.. pract?C I!',lec-trcl._.11t. nark. _I;1 ,`,nof their position, C . icr cZ.,as ::con: ._ r_-.__n .._.,_ 1':c.. , T
involved tH cw._,. -t~:..,._ :,i_L;. ... ~fJJ_'J~CL in th: ... _.'·T~'G ...'.i;3.f?U:%C . J`! t_~.-G A1',-~rd
concerned dispute ',, is"cl"l`cUr' or rp~rlq _'%,&n coils MY. «.
lis^, r'-ch`n M,-Lh - -M jack. Tba C ._. ....)r a.lr o cu'ltends Mt
the practica rc- i" M .. U140 0n 0:` Of' -.. _ rh G'';. ,_'.c, : .·_._ ndevices b!_-ten t.. -t:h.
h, ' j 1, &~.s wic . _ _ ,11024 ks . ._ back as
1950. As an e.. nle of thn% practice, t."_. Q , . . _ rotors to a letter
F" b Shop _~: ..'1.:T.~ ._ _., jo`? :t ,. olm V.'.wi;e. _.:!.i.- _ _ j, 1_, . ,
.,_ .ht,l -3' C"` _;,~'~ v,r'U Shout , 't;_. 1 ',',nthurs' M_.,.!. 0_ .imnn. The Vurcl
:3, 1950 lc't-i,ar stat< , ira Part, m. -i u:1dnw. ,
T'ox'in 1
fw:ard_
T,io.
7579
Page
3
t T ~J,~
r,
PQi'..h(;
V
No.
`(13.~ i "!
2-M1'-i il i-
~ 7(j
"The servicing, maintaining and repairing o!' electric
drinking fua:rtain.^, at Fort;, I,1ttle
IC~;:._
:hop:; v,_' U_
be handled
_.n
2"2cordancu
.r
i'th past
prueiiCe,
'1.C,'.
Electrician Craft will ;rn.iilf;ain arid repair all
electrical en_;pme=nt, compressors, will also connect and.
disconnect refrigeration lines ard
wu.tC;'_'. Supply
lines
inside ca;b'J tn-c
. . . r`
It i:; the Carrier's
,)r;
;.tiorl that the letter o_° March 2, 3950 sets forth.
the practice on water coolers and that this practice was thcreafter
., ..
-tj~_f:
claim an c.17_ cooling
C'LC'v:LCCS.
Tj:<)
f;<11:'I'7f;1:' O.J_"o
asserts that
m
itr
)ro. ''_'
ke, , ( ~Ci1· . at
the punitive rate a: sought for
<' :i.In.
:'L=:aa .oz':v~ioc,
`n
_x
em;~..Io,'eN ~~i!o .peribr~..,=d non at the suy'h c_I_ R:ir,lcca_.
The Sheet
·r_ r..
cl0n, assert that
,h i,t-.
=.; °)
b
i o . to l..`)':..._
1:%ur,,
__%nt
t:) 1';1_1_L
C
')7. C_a3sifica't
_C?il
"`(lY°, '11
!. ,.na , a
,"rl
er contends that a ,.t practice
llas
be( w,
`lbl"1=^_.
,.ht;r'_> y this _JIt
f?'..._ been p'rforned 1.);
l..iZ·_
E_I_4'l:ricians>
t ·. e.
_ Cho
'1
d
pu_'l.` ._.
t'hn
Ausi-.anl,
U5'-_7.t'_ , .>_) C
ontC' ,
that the work as properly LcsAnncd to
.r. - ·. 7 ; a
·`a
3~
r'r''.
(''.
o._
A .rh._'J:
m-. _.t_,
ns':
that U_ _
is
swe
!°:ms dC'cidwd
1.??
'?t^I<)^Y"(7
Go. 6924
b_'tu'eon
the ....'t?.e p.
rtii=..
U,`C'`LCi.
In
the
,.ilnt,`
.;t
claim
the
unui'_
7
nvo.L'doC!
CLic'C'.unnccti ng V.° :1 'reon 1'-_5
piping :Leon cO.P1'.._sO:'. to cOndensor r'-..il. ie.l.acin the C°C :nssorr un..
ua ·,.,, .i-·iitt ;, r I .ori - , nrions i_.: ,.__ of co _ plpc.
rU' ~ the ~ ^ '~- -19' applies to th.e sevvic:. , _~ ,. _ ~':i_,
1'..''J~i.~y,~ ~.;~t,`t'..,. `t'..,..;~t,`t'. .,.'.,. 3~1~ .r..,.C':~ ~1 w'~, ''1 . ,. 1. .... ...
and ^ ~ ~c._ic' :~._'1_ i1=` fc)- i,utWnw c?.', 1.0i.~'C: T·:i'l;i; __ :~:' > ;i;.~.~:
r.Ol 'Er')l.d~ir_y7Y..( of ~> of `~__C'~%..
Such llor-. !:T~.~_^, riot inyC1lvcd in the ins'tIIt, dispute. T`urtilop::ore. the _o..,
1~C~ 111'° - ~-l2t ri also d'.st_Y:-,.u_...:wbJ.e fro?ll ti-_:G ~rC)r°_~ j.r~irC'L'\,..',.i_
n~v...v ~C~vI~..~r._C~ `, JCi, ~, r is ,
1n the ;ln,rtaub claim. -l-Ll j`,%rv'arcd 10. b; _ , an, elec'twic l.:.)1 ...1s nonaccteed
refrif;c 1'...t:l-nE calls :;';~:.. C' _ ;r'c'~,1 '~ mach:Zne <-d . c;~'ovcd. tb'u coils.
The Board there col . o c'Gl;y hoid that `Gi!'i.;: i3_.S 1';C`:._~ reservc'.Q to tY_e
Electrician Craft by virtue of the Utter auted Lurch ?3, l`::5':>. ;?o;cvcr,
the' work invol;'°_.. hcrc, , ! .E'. replacing c3. c;oA'>rF:_:or on a. three (3) toe?.
air-conditioning unit, 1.'=s not covercd by UK Utter.
1.F' `tni.i; manifestly clear that the work involved in the ins'tan):,
claim C')1St'i11:-il:i:fh.k~_L.. from the woe".: Waf; was involved _i1 either Award
No. 6924 on T·':_. 'Wholca's letter of Enra,'h 23, .TP50. _ln fact, LLe wait ..:1
";, claurly br,i nj` '-. r..j. _ \t..-;R iNtal do''kErs U_.1:)· _ the py,o'.R ien,_
of ale C > > rlr-
';< '-. Hula `- Sheet
C_1 _`~?.~ ~.'ri~r'i_~l'R t
W ~`(' of We C:o_i._'i~t, ~_ 1'e_ ' ~G, ~. -
Classification of W"., folk, 1 _.cls nr_f'c, Hates t.hAi; vi:e norh o'·,. r ... f!_ttl. .:.
_c.aa.a,_ t ) i' b ....1._. connecting and di.connecl·1n; C'.. air, _.-,1.er!
gas, oil and . Ucam r_p.a s 7.. recoSW ii'd as r,i1~L:'li i4;ti,3,.f. >'·7Y'...~.W',,~ ~'~CJ=ii.
.c
r.
In the i tlatnrl't claim, cmp7_oye. ; c;-._ the 1?:Lo a L rl cian S c rL_ L d-i'NcoS- A:.._..__
the :T)."(,'On <'".^.> ,t: _.:1Yi;. .`!''..,..`i 't1!_. ccw1;?rC's^._!)r 't:) cni!doilsnr co115. char"cCL u;: ._
... ,. .i_
j orn 1 !ward No.
7579
loge 4
Docket Io. 7337-,,
1,1111
IS
7,i_ < ,7a
Connecting the now
C'c?'_-:TkeS SGr.
imle 97 of
the
cOYltrol7AE
Aj'_rEEment
,.i
E::s:C1~.2C1.'l~;v'
covers
thE'
piping
uF%I'_r
involved _.._ the
7__:.1'v'):Lt 'd7_shu-Ge,
and
r ,,
aC'.COk'd7T?Ely, 'Lt
belongs
tO
the Sheet Metal Workers.
Therefore, na2m)ch
ds
the C3.a7mants wcre deprived of
work
contractually
reserved `1UwTi T)57
RZ),iu
97,
we shall ,sustain t)?7:"G (1)
of
tho claim a`>
'',7C Y'
Findings. However, ii keeping with T1urcraus s".;arils of
this
and
otlw1'
Divisions of
the Adjustment
r=;
._n
we
find
ti,at the pro
rn;>;.
rate i: the
- `R'
7'° - ' f . 'rte`- such
an the one
au hand
1`,}'_et'C:
wit.~i'"~'.
4''t'..> Tl;:"l4
l.)t,'a.(1t~...=`~_.
`Ii):ur
i;'E~
"?'::~_ s_.cGnin
i"3.>''i,
(2)
U3.'
the
An'!n
at tile
pYJ
ruta rate, and
not
8;i:
the
j[3UT?J.t1:Ve
i'aGe
as
clalm_d..
T
;T
R I)
C1o,_.n,
(a)
sta>;'c~;i
n<--d .
Claim (>) Pusfunnd at the p.-'o rata rVe of
psy.
r - -r
r
vt
1
r`, ~, ;~ .i ,l~f`J~ :>~_ '~j)
,K - <- v
yi .R_ .' y . .A_
A-nest:
_,.=.'C`t~t.i`.~ _.,~'C:U~y
l,, :,-' r~
Nation&
ts...7...i.'GaEa_ l'_C1.ji~_.>~;?o,nt :. ~u _.CJan't%.
._. _ .__. . _.~ ! _ __. `~.__'.~'~r' __e__ 'i_ ,_
^'~^1'...i:il:rt-' _ ~e· rrasuh AUV1N,t-a1.o`,ie. Assis-.a?'t
`'c Tl._l -~o)lN, s, this 23th d-av of junE;-
Dated ~, Chicago, -. . , 1973.
CARRIER NHS' DISSENT TO SECOND DIVISION AWARD 7579
(Referee Theodore O'Brien)
This decision is erroneous and in derogation of our functions and jurisdiction under the Railway Labor Act.
The dispute in this case involved the utilization of electrical workers to remove a compressor from an air conditioner
for examination and to determine whether the compressor should
be repaired or replaced. The compressor was, based on their
evaluation, replaced, and incidental to this work was certain
piping work as outlined on page 1 of the award. The Petitioner
made it clear, during both the Referee Hearing and the Panel
Argument, that they were laying claim to the piping work involved
in connection with this process.
For the following reasons, we register a vigorous dissent.
I. The Referee Hearing
Pursuant to the request of Petitioner, a Referee Hearing was
scheduled and Petitioner was represented by a Vice President.
While we realize that in arguing cases, emotions sometimes
naturally show and such feelings affect the presentation of a
case, we believe the conduct of the Petitioner during the hearing departed from a normal, emotionally driven argument to a
point where it affected the rationality and objectivity of the
2
majority in reaching a decision. In fact, it seems to us that
apparently, this conduct was aimed at coercingly influencing the
neutral member of the Board. While we are reluctant to make such
an allegation, the fact that the Board several times requested the
Petitioner's representative to control himself and once requested
him and all parties to leave the hearing room for an executive
session seems to confirm our opinion that this behaviour was not
that expected of a labor relations professional. Again, we do
not fault the Petitioner for vigorous and skillful pursuit of his
case, but suggest strongly that in this case, such an objective
could have been pursued without the conduct employed.
II. This Claim was Clearly Barred by the Time Limits and Should
Have Been Dismissed on this Basis.
During the handling of the claim on the property and before this
Board, Carrier maintained steadfastly to the position that the
Petitioner had failed to timely appeal this dispute under the
provisions of Article V of the August 21, 1954 National Agreement.
The facts in regard to this matter were that Carrier's terminal
master mechanic declined the claim on July 10, 1975. Thereafter,
the Organization's General Chairman did not file an appeal of this
claim until September 10, 1975 - which was the post mark on the
3
envelope enclosing the appeal letter. September 10,
1975 Was
beyond the sixty (60) day period provided for in Article V for
the appeal of grievances and the claim should have been dismissed
solely on this basis, without considering the merits. Carrier's
presentation to bhe Hoard, and decisions furnished the Referee,
decisively pointed to the fact that in disputes such as this,
the date of post mark governs. For example, in Third Division
Award
14965,
Referee George Ives held:
"Awards have held that the Carrier must stop the running
of the time limit by mailing or posting the notice required
within the 60 days of the date that the claim was received.
(Award
11575
and Second Division Award
3656).
Here, the
Oarrier responded to the appeal within the sixty day period
and the dispute is properly before us on its merits."
Award
11575
of the Third Division (Hall):
"Article V of the Agreement dated August 21,
1954
was agreed
to for the purpose of expediting the progressing of claims
or grievances. With that in mind, certain time limits
were provided for. In 1 (a) of Article V it is quite evident that it was the intention of the parties that the 60
day time limit provided for would start to run from the day
claim was received and filed by the Carrier--that, obviously
would be the first time that the officer of the Carrier would
have knowledge of it. Proceeding further in our consideration of 1 (a), it clearly appears that the Carrier mast stop
the running of the time limit of 60 days by notifying within
the
60
day limit whoever files the claim of the disallowance
of same. That can be accomplished by mailing or posting the
notice required within
60
days of the date that the claim
was received. The employe presenting the claim then, under
1 (b) would have 60 days to appeal from the officer's decision from the date of the receipt of the notice of disallowance."
Notwithstanding the foregoing, the Majority considered the date
of September
8, 1975,
the date the letter was written appealing
the case, as the date of the appeal. In the face of evidence of
the postmarked letter envelope - which was dated September 10,
1975
- this conclusion was clearly erroneous under the authority
cited the Referee. Time limits, like other provisions of the
agreement, must be applied as they are written - they are not
subject to an interpretation based on equity:
Second Division Award 6383 (Lieberman):
"On September
23, 1970,
the General Chairman wrote to the
District Master Mechanic ...and we find that this letter
constituted a claim under Rule 34 (a). There was no reply
from the Carrier disallowing the claim within the sixty day
period following its receipt, as required by the Rule. Time
limit rules in collective bargaining agreements are as significant as axr other rules; they must be interpreted literally
and followed exactly by both parties. This Board has held
on many occasions that failure to abide by such time limit
rules is sufficient reason for either rejecting or affirming
claims without reaching the merits. (See Awards 2268 and
5693,
for example). For the reasons indicated above, we
therefore sustain the claim."
Third Division Award
19663
(rent):
"It is clear from the record that the claim for compensation
was not timely filed by the Organization as it was filed
sixty-one days after December 12,
1969,
and was filed with
the wrong officer of the Carrier.
This Board has held in the past that claims that are filed
late or claims that are filed with the wrong officer of the,
5
of the Carrier are not procedurally correct and must be
dismissed."
Third Division Award 21018:
"It is
Well
established that a Claim which has not been
progressed in accordance with the Agreement does not meet
the requirements of the Railway Labor Act and this Board
lacks jurisdiction to consider it. In one of a large
number of Awards on this subject, Awards 12767, we said:
'...the Hoard finds that in order to have avoided the
time limitations, the Organization must have filed its
appeal before midnight on January 31, 1960, and the
claim is therefore barred.'
Similarly, in this case, the Organization was simply at least
one day too late. The inescapable conclusion is that the
Board has no jurisdiction over this dispute."
Third Division Award
18352:
"We have consistently held that an employe who has failed to
initiate action within the time limitations fixed in an agreeis barred from initiating an action at a later date. Satisfaction of identified action within the fixed agreed upon
time limitations is mandatory as to each of the parties. Time
limitations set by contractual agreement have the same force
and effect as those found in statutes and court rules - a
party failing to comply by non-feasance finds himself hoisted
by his own petard."
Third Division Award
21996
(Sickles):
"Quite recently, this Division adopted Award
21873 which
cited, with favor, Award 21675. There it was determined that:
'...time limit provisions are to be applied as written
by the parties and that any deviation from this principle
would amount to rewriting the parties' Agreement, which
no third party is empowered to do.'
6
III. This Claim Should Have Been Denied or Dismissed on the Basis
of Past Practice at this Point on Carrier's System and on
the Basis of Previous Decisions of This Board involving these
Same Parties and Same Location.
There was in evidence in this case a letter of March
23, 1950 from
Carrier's then Shop Superintendent at North Little Rock, Mr. Whelan,,
addressed to the local. chairmen of the Sheet Metal Workers and the
Electricians which read as follows:
"North Little Rock - March
23, 1950
File 2801
Mr. W. J. Lyons
Mr. S. B. Shock
Confirming verbal instructions in meting in my office
with Electrician Craft (Messrs. Lyons, Smith & Driskill)
and Sheet Metal Worker Craft (Messrs. Shock, Roebling and
Hammonds) present:
The servicing, maintaining and repairing of electric drinking
fountains at North Little Rock Shops will be handled in accordance with past practice, i.e.,, Electrician Craft will maintain
and repair all electrical equipment, compressors, will also
connect and disconnect refrigeration lines and water supply
lines inside cabinet in performing this work and to remove
and replace coils. (Emphasis added)
Sheet Metal Workers Craft will maintain and repair all sheet
metal work, will repair coils when necessary to remove and
will also gas the boxes when necessary.
Isl
John Whalen"
It will be noted that this letter addressed itself to the
problem of who would perform work on electric drinking fountains
7
at North Little Rock Shops, and Mr. Whalen resolved this matter
with the two local chairman by assigning the work "...in accordance with past practice." Thus, the letter of understanding,
while addressing itself to the immediate problem of water coolers,
resolved the matter on the basis of past practice, to wit:
"Electrician Craft will maintain and repair all electrical
equipment, compressors, will also connect and disconnect
refrigeration lines and water supply lines inside cabinet
in performing this work and to remove and replace coils."
The record of this case contained no evidence that either the
Sheet Metal Workers or Electricians had ever protested this letter
or any contents thereof. The record did contain evidence submitted by Carrier and the Electrical workers that such work had
been assigned to them for the past 27 years, and the record also
contained reference to Second Division Award
6924,
involving
these same parties and same location. In that case, Referee
Zumas wrote:
"This is a claim by a sheet metal worker that arose when
an electrician assigned to the Electrical Shop at North
Little Rock disconnected refrigerating coils from a degreasing machine and removed the coils. The Sheet Metal
Workers contend that this was work belonging to that
Organization.
There is no question that the electrician melted the
solder joints to remove the coils and resoldered the
joints to reconnect the coils; no repair work was performed on the coils themselves."
4 r
After quoting the March
23, 1950
letter from Mr. Whalen,, supra,
Referee Zumas affirmed the past practice at North Little Rock
and found that it applied to this dispute. Again, we emphasize
that the work in dispute was performed on a degreasing machine,
and not an electric drinking fountain. In conclusion, Referee
Zumas held:
"Carrier contends that there has been a past practice of
long standing to divide the work on cooling devices between
sheet metal workers and electricians. Evidence of such
practice is a letter addressed to the local chairman of the
two crafts dated March
23, 1950
that reads as follows:
Under the circumstances, the Board finds that the claim is with
out merit and must be denied." (Underscoring supplied)
It will be noted that the decision of Referee Zumas recog
nized that the past practice at North Little Rock was in relation
to "cooling devices" - plainly and simply, nothing more and nothing
less. If an air conditioner is not a good example of a cooling
device, then we submit a total loss as to what is.
As we said, there was nothing in the record which indicated
that either organization party to the march 23, 1950 letter took
any exception, whatsoever, to the past practice referred to therein
or to the allocation of work accomplished therein. To take the
first exception to it some twenty years thereafter is clearly not
9
timely and does not refute or set aside the past practice which
has, just like the written terms of a labor contract, become a
part of the agreement between the parties. This point was well
recognized by Referee Zumas in Award
6924
and should have been
followed here. During the Referee Hearing, there were various
statements concerning the personality of Mr. Whelan and the intent of his March
23, 1950
letter which were made by Petitioner.
Not only were these statements without support from the record,
but they also did not
deny the
existence of the past practice.
In summery, nothing was presented which could have established that (1) the past practice did not exist and
(2)
that
Award 6924 was erroneous or was not controlling in this case -
and we reiterate - that decision covered the very same work as
was involved here - albeit on a different type of "cooling
device".
This being the case, the Majority should have recognized
the past practice, as affirmed in Award
6924.
The principle of
"Res Judicata" was clearly applicable, as was called to the
Referee's attention, and should have been followed:
Fourth Division Award
993
(Ferguson):
"The Carrier on its part argues res judicata. From a
review of the record, we believe that the instant claim
10
contains the elements to support the argument, i.e., the
same parties, base their present demand for the same relief,
on the same facts, and the same contractual rights as were
raised in Docket No. 823, Award No. 830.
We are of the opinion that we do not have, and should not
assume, the power to try the same issues again or to declare a previous award to be in error. Such a ruling would
destroy the entire purpose of the Railway Labor Act and
would nullify the final and binding provisions of Section
3 First (m)."
See also Third Division Awards 18315 (Criswell),
20455
(Blackwell),,
20542
(Eischen) and
21184
(Lieberman).
The decision in Award
7579
was erroneous: (1) We had no jurisdiction
to consider the merits since it was barred by the time limits and
(2) the findings on the merits were wrong and without foundation
in light of the clear past practice and the findings of Award 6924.
We again register our vigorous dissent,
- &. - 4~
G.H. Vernon
- (~._ - Nkm -
J.E. Mason o
LABOR
MMBER' S RESPONSE
TO CARRIER MEMBERS'
DISSENT TO AWARD NO. 7579, DOCKET NO. 73? 7-T
In reviewing Carrier Members' dissent
to Second Division ,ward IVo.
7579 we find there are so many discrepancies arid downright fictitious
statements that we have no recourse but
to go on record
and refute their
dissent.
Under Item 1 captioned "The Referee Hearing", Carrier referring to
the Vice President of the Sheet Metal Workers states:
"While we realize that in arguing cases, emotions
sometimes naturally show and such feelings affect
the presentation of a case, we believe the condu^t
of the Petitioner
during the
hearing
departed from
a normal, emotionally driven argument to a point
where it affected the rationality and objectivity
of the majority in reaching a decision. in fact,
it seems to us that apparently, this conduct was
aimed at coerc-i ng? y influencing the neutral number
of the Board.---"
The Vice President referred to is Mr- Richard E. Martin arid as a
pont of information Mr. Martin not only
worked as a sheet metal wor)~;er
for this Carrier at North Little Rock, Arkansas, but served as Local
Chairman, Vice General Chairman and Gneral Chairman over a period of:
some twenty--odd
years and because cEhis first-hand ;:nowledge of the
work in question there was no one better qualified to present our
case to the Board.
if he did display emotion it was to defend cur case
against
the
prevaracations being submitted by Carrier representatives as fact.
The
only reason we can see for Carrier objecting to Mr. Martin's presence
at the hearing was because they were well aware that he was the most
knowledgeable adversary to oppose their try try convince the Board to
take work which rightfully belonged to~ the Shcet Metal Workers and
literally give it to another craft (electricians).
In Item II Carrier Members continue, as they did in their Submission
and Rebuttal, to contend
that this
case was barred by the time limit and
go into a long dissertation involving quoting of numerous awards in
various cases to try to substantiate their plea. However, while these
awards would be valid in the specific cases quoted, they would have
absolute-ly no bearing in the instant case. We are confident, as we
are sure the Carrier Members are, that the Board, including the neutral
member, looked very closely at this aspect of the case and reviewed
thoroughly the correspomdence file to make sure that no discrepancy
occurred and that there was absolutely no violation of the time limit
rule (Rule 31). In our opinion, Carrier Members cry of complaint
concerning Rule 31 can be considered as nothing more than a hope that
they could have the case dismissed on that basis because they knew that
the rules of the agreement and past practice supported every contention
of the Employes that this was work belonging to them and to no one else.
Under Item III of their dissent Carrier Members again quote Shop
Superintendent John Whalen's letter of March 23, 1950, intimating that
Mr. Whalen's letter is the Magna Carta of the electricians' right to the
work. Nothing could be further from the truth. Sheet Metal Workers were
never signatory to such an agreement because they would never consent to
giving their work to another craft, and we refer you to the Memorandum
of Agreement of November 1, 1955, copy attached, entered into by thc=n
Chief Personnel Officer for Missouri Pacific Railroad, Mr. T. Short,,
General Chairman of Maintenance of Way Employes, Mr. C. L. Lambert, and
Mr. Richard E. Martin, then General Chairman for Sheet Metal Workers,
arid we direct your specific attention to section (g), which reads:
2
LABOR MEMBER'S RESP014SE TO CARRIER
MEMBERS' DISSENT TO AWAf
r?~
7579
(DOCIrET N0.
T
3~-r)
"(g) "Plumbing Work'°------This term covers work in connection
with
sanitary installations, such as
water and soil pipes, baths, wash
basins, water closets, urinals, hot
water and drinking water facilities
and their fittings - or work normally
performed under the supervision
or
a
registered plumber. (Sheet Metal
Workers will do all the "maintenance
work in connection with drinking
fountains, such as cleaning and
r
blowing of coils, installing new or
repaired coils, removing, repairing
or replacements to outside coverings
or casings. Maintenance of Way forces
will maintain cold water and drain
pipe to drinking fountains, also
install, remove or replace any drinking
fountain. This will not prevent. the
Sheet Metal Workers from disconnecting
drinking fountains to make necessary
repairs and to make connections after
the repairs are made)."
Carrier Members also contend that at no time did the Sheet Metal
Workers or Electricians ever protest Mr. Whalen's letter. Since it was
not a bona fide agreement and since the Sheet Metal Workers never agreed
to such allocation of work, there was no need at that point in time
to make protest, however, when the Carrier tried to make Mr. 4halen's
letter an instrument of agreement the Sheet Metal Workers vigorously
protested.
On Page 7 of their dissent Carrier Members again insist that Second
Division Award 6924 involved a case parallel to the instant case. Again,
nothing could be further from the truth. Award 6924 involved vapor cones -
not air conditioning, which is the work involved in Award 7579. The
ruling of the Board in Award 7579 was correct as it was in companion
Awards 6774, 6775, 6776 and 6777.
On Page 8 and 9 of their dissent Carrier Members again refer to
Mr. Whalen's letter and in conjunction with what we said previously we
wish to reiterate that Mr. Whalen's letter did not constitute an agreement of any kind and while it referred to water coolers it in no way
- 3 - LABOR MEMBER'S RESPONSE TO CARRIER
MEMBERS' DISSENT TO AWARD 1,10. 7579
funrvf:T ijn
°7 i1 r-q,-'s
referred to air conditioners.
In summary we
wish to state:
1) This case was timely progressed in line with
Rule 31 of the agreement.
2) Award 6924 upon which Carrieg relies so heavily
has no bearing whatsoever in the instant case -
that award involved vapor cones - not air conditioning;
3) Mr. whalen's letter has no effect on the instant
case because it was never agreed to by the Sheet
Metal Workers - also his letter referred to
water coolers - not air conditioners;
4) Awards 2898, 6774, 6775, 6776, 6777 and now Award
7579 clearly establish beyond all question that
this is work belonging to Sheet Metal workers;
5) The ruling by the Board in Award 7579 i in all
way correct.
r.,
m.
J. Cullen
Labor Member
LABOR MEMBER'S RESPONSE TO CARRIER
MEMBERS' DISSENT TO AWARD NO.. ?579
(DOCKET NO. 7337-T)
tEMORANDUI-I OF UNDrI~i1 STANDING
Between th~:
MISSOURI PACK
,.7
R"-" .:OLD COii.,"
A'JY
BROTHERHOOD OF 1IAI 1_uA,_ OF :JAY
1 ,
BROTHERHOOD :LOYES
and
SHEET 1-TTAL WORKERS DITLRNATIONAL ASSOCIATION
To eliminate disputes between employes represented by the Brotherhood of
Maintenance of Tay Employes and those represented by the Sheet iletal Workers
International Association based on allocation of work, it is agreed:
1, From date of this M-IORANDUM, pipe work is not to be allocated
accord
ing to so-called past practice.
2, From date of this 1M,I0RANDUM, pipe work twill be
allocated in the following manner:
(A) Shops and enginehouses t,There Sh^et T"etal ,Jorkers are employed,
to
Original
installations and
removals in
case of abandonment of all or a part of
pipe line systems -----_--.__-_--_------_---___---_---_--_ iloftJ
Forces
(Original. installation or abandonment of a part
of a pipe line system as referred to herein does
not
include
connections or extensions from the
mainsystem to
machines, e';c,,
b,x.t refers to
original installation of an. extension of the
main system or removal in case of abandonment
of a part of the main system.
A drop which supplies only one unit, such as a
machine, pump or vat, shall not be considered as
a part of a pipe line systems
A drop from a pipe line system to an individual
unit, such as a machine, pump or vat, is work that
is to be performed by sheet metal workers, but
this shall not include the tee or other outlet
where connection is to be made to the pipe line
system ..her. the same is put in at the time of
original installation, or
extension of
the pipe
line system, which is work of maintenance of way
. employes,
It is further understood that where a crop comes
off the pipe line system wad a
number
of units, such
as machines, pumps or vats should be connected to
it, they will be considered the same as one unit
connected to the drop. In other words, if the
drop cor~li.ng off the rain line systc-i does not form
a continuation of the pipe line system it
trill
be
considered sheet metal workers work regardless of
the nt1mbcr of units that are connoted to the drop),
2
All maintenance, replacements. and relocations
inside of buildings - above ground or floor
__..___________- Sh, P-iet21 I%Ikrs,
(The language all maintenance, replacements
and relocations inside of buildings - above
ground or floor line is intended to mean:
That any and all such mentioned work shall be
done by Sheet ioietal :-Jorlcers, except work below
ground, which will be done by the Iiaintenance
of Way Forces).
3.
All. installations, Maintenance, replacements,
relocations., and removals outside of buildings
above and below ground, and inside buildings
below ground or floor line
- IIofI,,t Forces
All installations, maintenance, replacements,
relocations and removals of a1_1 pluribing wor'_;
in connection trite heating plants, drinking
water supplies, vrashroorns, anal toilet facilities, wherever 1 ocated ---____.._..-....___....__..,._- ilof;lr Forces
5,
(a) The making, when done in shops, repair,
maintenance and installation of all heating
units and their appurtenances after i:ainten
ance of `:!ay Forces have installed the main
pipe line system
Sh. iietal ~,sIkrs_
(b) The installation of heating units and
their appurtenances in new construction
where no Sheet iietal Workers are employed -------- IIofGJ Forces
(B) _Porr
er plants at St. Louis, Ihzno,, Poplar Bluff. DeSoto,
Para
nould, ~:cGF:iiee, i:onroe, Alexandria, Little _Itock,
North Lyttle Roc"-', 5e
dalia, ~Ita.nsas City, Csavratar.ie
Omaha,
1. ( a) All pipe work in pourer plant buildings
except lead caulked cast iron pipe and
fittings, and all underground lines
{b) Installation and maintenance of lead
caulked cast iron pipe and fitt~.ngs, all
underground nape lines and plur:lbing
covered in (A-4)
___-__ Sh. I-Ietal Wkrs,,
IIofLJ Forces
2. All installations, maintenance, replace:.ients,
relocations and removals outside
buildings -------- Hofd Forces
(C) Al
l points other than at poi,,Ter plants,,
slues
and
en
inchou
se
s ,
1, All installations, -maintenance, replace:aents.,
relocations and renovuls
3m
iof ;l Forces
This a.,!reeinent is not to be construed as beinE; in conflict with tine
me-;orancu:~ of .^.pril 'j, 190, covering -uze
natter
of ins tal'_a'c:i.onj
re:'.oca-ti_on, re;)air5.n:; and testing, of ory-on-acetylene facilities
i n the s'_ions at =ans as City (.'ast mot to:as )' Sedalia, St. Louis,
Oe,`~o to ane.:~ aorta Litrle : :ocl:,
Intern
re tati_on o~° "~'errns uses in this : :ernorandurs,
~~lloT
'ji
p s anc~ :~n3_nehouses"
(b) " Below ~ round or floor
level"---___.,__....__--__.._____
- ;Jithin
shop 7.,rounds or iochanical
facilities. ~u~i'.ir.~s, such as
bac:=shops, diesel
s.TOps,
roundhcmses,
tea:
Jcpta boil c'~.r,~: or an:,r
additions,
partitions oi, c,-tensions
to such bui' di n~s
where
),eci:anica:.
forces axe e_r,)lo,)Ted, but this dcas
not include oil-ice boil
din~sf
store
rooms or buildings in ,4iich . 'aintenar:ce of :~
~r
forces are euployed.
This ~c,-111 not -)--event the Sheet
e,,. ,~ fro:i -ocxiorninrr work
i : ~~_ '.'lUT _Ei _
an space set apart in 'our:! c'd.y,s to
house the General
Foreman
or otuer
-mechanical officer s, (It is under
stood that the wording "forces are
e~;i;alo5red" raca.ns in buildings or
d.i.nar i.ly consieered as their re
sp
ec rive shops or buiJ_di n~; as
spelled out in interypr e:.ati an)
'Does not °ie_an pines in ')a.semonts
or open
troughs in floors,
s
(c) "Out-side of buildings" ------ Ts not to be coj:tr~jec? as being in
conflict' nrit'.z meet ::etal .'or';ers'
aree:uenZ covering work in the
Maintenance of ::~auip:uent Dept;,
(d) "Poi.rer Plants"
(e) "All points other than at --
Power Plants, Shops and
a:,nginehouse s"
lit points speci.fied in 'I:ernorane?tt;~1
is :pelf-exDlanaiory-.
defined as outside of shop grounds
or u;echani cal facilities such to
freight houses, 6.epots - anc:
aa_1
other buildings and pipe work :rot
under the jurisdiction of _:echanical Dept,
(f) "Pipe work"
---_---_-----
(g) "Plumb__ing, ?iTork" ---------
This term erabr aces metal pipe,
fi~,t:inns, valves, appurtenances,
and, coverir;,s therefor, also metal
pi--::hanbors and supports, but
does not inra.,7de sanitary toilet
facilities.
This term co,,,:3rs irork in connection
with sanitary installations, such
as grater and soil. pipes, baths, wash
basins, water closets, urinals, hot
water and drinl-cinz water .facilities
and their fittings - or work norm
ally performed under the sunervi lion
of a registered plilnber. (Sheet
I:etal '!or::er s t-r-ill do all tile nain
tenance wor'_: in connection with drink
in- fountains, such as cleanin- and
blowin- of co2.1s, iz:stal7.ing new or
repaired coils, re::ov lng, rcpa_l_r ing
or replaceaents to outside cov-,rings
or caoins, Ilsatonance of
:!a,7
forces
will maintain cold Mater and drain
pipe to drinking fountains, also
install., r e7,tove or replace -jiy drinking;
fountain. This will not prevent
the Sheet .fetal '6,:Torkers from dis
coruiec t;inb drinking fountains to
make necessary repairs and to make
connect-ions after the repairs axe made).
This agreement entered into this 1st day of izove;:ber,
1955,
and. shall continue
in effect until changed in accordance
idth
the procedure required by the -,ailway
Labor Act.
This agreement cancels agreement of October 28, 1952,,
For the Employes;
S/ C. L
, L anbert
eneral Chairman -
Brotherhood of j':aintenance
of 'jay :~zvl oyes.
S R. E.
i:artin
General. Chairman -
Sheet iietal .1orkers Inter-
national Association.
Files
24.7-2331; z47-3038; 716-15
For the Carrier
/S/
T. Short
;;hie . I'~ersonne7 Officer