Form 1 NATIOML RAILIMU ADJUSTIENT BOARD Award No. 8'123
SECOTT DIVISION Docket No. 7828-T
2-SLSF-ia-' 79

The Second Division consisted of the regular members and in addition Referee Robert E. Fitzgerald, Jr. when azsard was rendered.

( Internatiazal Association of 241achinists and

( Aerospace Workers

Parties to Dispute:

(

( St. Louis-San Francisco Railway Company

Dispute: Claim of Employes:

1. That the St. Louis - San Francisco Railway Company violated the controlling Agreement, Particularly R.tles 31(a) and 53, when they arbitrarily assigned Carmen to installs new cables on ',irecker SLSF 99022.

2, That accordinr:~,y, I .-he St. Louis - San Francisco Rail-~,~,y Carspar.y

be orderad to cG::pensate °'_`achinists lion Stafford arid -cl

in the ar.ount o--'' s~_._~cen (1.6) i:oturs' pa- each a~ a i:=ach-inist's

pro rata rate of pay for da<r:a~es gnat they sustained, in that

they were denied the right to p~rfor^.1 the <^,.bore d:,:cri`bed

Machinists work.

Findings:

The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and th- emplcye or emnl oyes involved in t:-! =s dispute are re-spectively carrier and <::uploye within the meaning of the Railz-ray Labor Act as approved june 21, 1934.

This Division of the Adjust cent Board has jurisdiction over the dispute
involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

This claim arose because the Carrier assigned members of the Carmen's

Union to rem.ove cables from a locomotive used as a wrecker and to reel ace
them with new cables. This York too-,. n1 ace at the Carrier's yard located
in Springfield, ?.'i ssouri. The 'aachini st's Union elai:as a v:3olation of its
work jurisdiction under R'LL.''e 53 of their a' gr~enent with the Carrier. The
primary contention of the i `achini stS is that the language of pule 53 gives
them the right to Perfo'f "? -~Tor'r:: on loco-motives, and. that it specii'ical3z'r
refers to cranes and hoists. The 11'achiaists point to its evidence that it
has traditionally nerfo=fad rena-.'~r wot~I; on wreckers, when they are
worked on in the Carrier's yard.
Form 1 Award TIo. 8123
Page 2 Docket PTo. 7828-T
2-SLSF -2,,1A- ` 7 9

The Carrier contends that the matter is a jurisdictional dispute between Machinists and the Carmen, and that the Board lacks jurisdiction because the Yachinists have failed to avail ther?selves of the jurisdictional dispute resolution machinery of the collective bargaining agree=ent. Further,, the Carrier contends that there is insufficient evidence in the record to meet the burden of proof that the work of rerairi ng wrechers has been exclusively -,frithin the jurisdiction of the Vachinist's Union. Finally, the Carrier argues that the cl a.m for twice the n=umber of hours required by the Carmen to perform the work in clues ti.on <X:our~Its to an excessive request, and it is, in reality, a penalty.

The Carmen's Union has entered an appearance as a third party, and has submitted an arg=_ent claiming that a jurisdictional dispute exists. As does -the Carrier, the Caz^en contend that the 1v1ach:inist's failure to invoke the jurisdictional di.:ate resolution procedure deprives this Board of jurisdiction. Further, the Caz:en contend. t.,4t they have nerfot^-ed repair work on wreckers at various locations :-rithi n the Carrier's system.

In response to the arg-m-ents that the:-a is a jurisdiction-al di.scute

the 2.,

.Tach:inis·nr 9 rv,s

to ., coni.i that no Znc-n , c .Lisj r-: sct.,.c4.. chm,l f :~te, within tt z_eanin

of the collective ~.~a _^:;aining ?~-r°;.--e:,ent, exists for a nu_-bcr of reasons.
Initially, th ;r contend teat the clear contract lan-;va-;e arearing i n :;ul e
53 precludes the jurisd_ctio ~.1 ~~.~ Yut:e, bec::.u a the ~t.r....: !~hav a jurisdiction
only over passenger and f rei.ght cc,rsror=. Secondly, they contend that a
jurisdictional dispute does not arise when there is a sn';le instance of an
erroneous assigmnent of wore,.

Finally, the ".achi nists contend that any attempt by that to invoke the jurisdictional dis uute procedure would have been fui le because of the performance of work and claim for the work. by the Carmen.

The essential question to be resolved is whether a jurisdictional dispute exists within the me=caning of the collect;.ve bar ;aininagreement. Numerous decisions have been cited by the Carrier and the Carmen on the one hand, and by the :.,achini sts on the other land, for their respectiv a positions. Nevertheless, these well reasoned decisions of many i.~.-pai-ti.al arbitrators do not present an irreconcilible conflict.

The essential distinction to be Y^ade from a reading of the many decisions cited by both sides of the ar,-,L,,,_ent, concerns itself with the nature of the work perfon.ed, as contrasted -.-,,th an isolated instance of an erroneous wor:_ ass i :z;r._;.nt. Thus, these abitra.tors v~no found a jurisdictional dispute , clearly based their conclusion upon the conflicting claims for work of a certai n type, or for won that has been newly created as a result of tec"inological innovations.

However, those arbitrators ,;ho found th~:,t no jurisdictional dispute existed, based their conclusion on the fact that the C tr-ri er -ade an erroneous assi~;!nent of work +v-h,,-,'V gas cle arl~. ~<-' wh t?:e ,;urisdiction of the claiming Union's contractual wor'-_ 1-o:arxage.
Form 1 Award No. 8123
Page 3 Docket No. 7828-T
2-SLSF -IYIA-' 79

Based upon the record in the instant case, the Board concludes that the instant claim involves a situation where the Carrier made an erroneous assignment of the repair work on the wrecker. The record is clear that the Machinists Union members have traditionally performed the basic repair work on wreckers while they are in the Springfield shop. Therefore, no jurisdictional dispute exists.

On the merits of the case, the record reflects that the jurisdiction of the Machinists, is to perform substantial repair jobs on wreckers while the equipment is in the Company's Springfield shop. By contrast, the work of the Carmen, on wreckers, has been for the emergency repairs that were required, to that equipment, on the site of a train wreck, including inspection of the equipment for serious damage that could create an immediate hazard.

Therefore, on the basis of the record, the assignment to Carmen of the replacement of the cables on the v,rrecker, -~rhile it ~:~.s in the Springfield, Missouri yard, was a violation of the language of rule 53 of the collective bargaining agreement. Accordingly, Claim 1 -is upheld.

However, the second claim of the l:achinists, for an award of ra y that is twice the amount of the time spent by the Carmen to perform they work, is improper. Althoujh the "'&,chinists claim that a penalty is required to deter future assi gnments of the nature, that argir.ent is unpersuasive. There is no evidence in the record to sustain a finding that the Carrier made the assign:::a::t in bad faith. Therefore, there i s no basis to invo:e a penalty to deter future assit_r
k, aents o= this type. Claim 2 is upheld only to the extent of the payment of 16 hours of wages to the iiachinists' Union members.

A W A R D

Clan 1 is upheld. Claim 2 is upheld only to the extent of 16 hours of wages to the '%,Iachinistso

NATIOM RAMROA.D ADJUSTi·KTT BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

t;I osemare Brasch - Ad:~Lnistra.ive _,.ssistant

Dated at Chicago, Illinois, this 27th day of Septe:nler, 1979.