Form 1 NATIONAL, RAILROAD ADJUSTMENT BOARD Award No.
8283
SECOND DIVISION Docket No.
7956-T
2-C&O-MA-'80
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:
(
( Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
1. That the Chesapeake and Ohio Railway Company violated the controlling
Agreement by assigning other than employes of the Machinist Craft to
perform work which accrues exclusively to the Machinist Craft by rule
and practice.
2. Accordingly, Machinists Talton Webb, Robert Hayes, James Swindell,, Arch
Worly, Herman Young, Frank Dickson, Willis Cochum, Ray Worthington,
Paul Burley, Russell Rase, Columbus Dixon, Oscar Kazee, Jack Grayson,
Robert Large, Chester Grayson, Arnold Murray, Gaarles Trusdell, Freemont
Broughman, Richard Akers, Ralph Royster, Bobby Logan, Chester Kibbey,
Paul Hennecke, Stephen Wi7inoth, John Stephens, Charles Mazzone, Jennings
Nelson, Paul Freeman, James Stanley, Dennis French, Charles Ellison, Joel
Baisden, Henry Collins., Alvin Harmin, James Barber, Larry Carrico, Ed
Anderson, Garry Jenkins, Roe Bryan, Ervin Dnncan, Norman Fraley, Willard
Nunley, Glenn Madden, Billy Jamison., Arnold Duranitt, George Nolan, Larry
Craft, Willie Tolliver, Glenn Watson, Ron Adams, William Boggs, and
William Malone and Machinist Helpers Roy Clark, James Carter, Henry
Schmidt, James Boyles, Charles Heck, Willis Knipp, Paul Maynard, Robert
Cremeans, Mike Carter, Denver Whitt, Jackie Fray, James Keaton,, Amos
Geerhart, Paul quals, Ray Breene, Lewis Justice, Alva Markwell, Ed Compton,
Howard Davis, Steve Lawless, Jerry Howard, Don Wolfe,, Charles Neal, Ron
Davis, Clyde Smith, Gene Horn, Ron Jacobs, Michael Hammond, Dwight Sizemore,
James Shank, Gregg Boggs, Michael Smith, David Frye, Michael Moore, Paul
Hutchinson,, Daniel Lewis, Randy Brown, Carl Billups,, Randy Anderson,
Terry Breech, and Randall Miller should be compensated twenty eight
(28)
hours' pay each at the applicable rate of pay.
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 JNj.ne
21, 1934.
This Division of the Adjustment Board has jurisdiction aver the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
A
Form 1 Award No.
8283
Page
2
Docket No.
7956-T
2-C&O-MA-'80
This dispute involves a claim by Petitioner (Machinists) arising from Carrier's
use of Carmen and Blacksmiths on or about January
27, 1977
to construct a frame at
Carrier's Raceland
(Ky.)
Car Shop for use in breaking frozen coal in hopper cars.
Petitioner alleges violation of the Machinists' Classification of Work Rule 62(a).
The record discloses that in January
1977,
Carrier utilized carmen and
blacksmiths to construct a probe device designed to be lowered into a hopper car
and break up the coal by penetration. The device initially consisted of an I-beam
frame on which were welded varying lengths of pointed round bar stock with air
vibrators attached to the frame by the Machinists' Craft. When this proved unsuccessful, carmen and blacksmiths were used to replace the round bar stock with approximately
60 six-inch I -beams of varying lengths, welded at a right angle to the frame. Air
vibrators used to vibrate the frame proving unsuccessful, Machinists were used to
replace the air vibrators with Robins Car Shakers.
The Machinists' initial claim., filed February 14,
1977,
stated that the
addition of the vibrators converted the "purging structure" to a coal shaker and
that the Machinists' Craft had historically performed all work on shakers. In
subsequent stages of the processing of the claim, it was contended that the probe
was a "machine tool" and hence within the Machinist Classification of Work Rule
62;
and that it was a "car shaking machine", repairs to which had been performed in the
past by Machinists at Raceland.
Carrier maintained that the probe is not a pneumatic or hydraulic tool or shop
machinery as set forth in Rule
62
and there was no machinists' work in connection
with the actual construction of the frame. Further, it argued that construction of
the I -beam probe was new or experimental work which had never previously been performed
and that, therefore, the assignment of such work was at its discretion. Carrier
added that no claim was filed by Petitioner when Carmen and Blacksmiths constructed
the I -beam frame, and that it was only after machinists installed the shaking devices
(air vibrators) they claimed the exclusive right to replace the round bar stock with
I-beams.
The record discloses that the Blacksmiths' and Carmen's Organizations were duly
notified of the pendency of the instant case and filed submissions in connection
therewith.
Carrier, in its submission to this Board, contends this is a jurisdictional
dispute and that the Machinists have not complied with the applicable Agreement
provisions dealing with craft jurisdictional disputes. Accordingly, Carrier requests
that we dismiss the claim. Petitioner, on the other hand, urges us to reject this
argument on the ground that the jurisdictional issue was never raised on the
property.
The controlling agreement (Supplement No.
6)
provides in pertinent part as
follows
"... in the event of a jurisdictional dispute between crafts,
that this dispute must be taken up between the crafts involved
before such dispute is handled with Management."
Form 1 Award No.
8283
Page
3
Docket No.
7956-T
2-C&o-MA-' 80
Our reading of the record leads to the conclusion that the equipment at issue
was new (or experimental), no similar equipment having been built at the Raceland
Car Shop or at any other Carrier facility. Hence, we are of the opinion that the
conflicting claims among the various crafts in the situation hereinabove described
give rise to a jurisdictional dispute, with each craft claiming the exclusive right
to perform the disputed work under its respective work classification rule. The
record shows no evidence that Carrier unilaterally changed an established assignment
of work.
Carrier, as noted, in its Ex Parte Submission raised for the first time the
allegation that Petitioner has not complied with Supplement No.
6
to the controlling
agreement dealing with the settlement of jurisdictional disputes, thereby raising a
question as to the Board's assumption of jurisdiction over this case. As to whether
Carrier's argument on this point is barred because it was not raised on the property,
this Board has held in a number of Awards that the question of jurisdiction may be:
raised by either party at any time. Second Division Award
5938
(Dugan) stated:
"The Organization in its rebuttal to Carrier's submission,
contends that at no time during the handling of this claim
on the property did the Carrier ever question the procedural
handling of this claim, and that thus being a new issue, it
cannot be considered by this Board. With this contention we
do not agree. This Board has consistently held that a question
as to the Board's jurisdiction may be raised at any time in the
proceedings. See Third Division Award
16786."
(See also Third Division Awards
18577
(Ritter),
8886
(Memahon),
12223
(Dolnick)
and others.)
This Board has on its own motion declined jurisdiction, when warranted, even
though no party raised the issue during the handling on the property (Second Division
Award No.
6003
(Gilden)). To the same effect, the Board in Third Division Award
No.
16786
(Zumas) held:
"While the record indicates that the question of jurisdiction
was not raised on the property, such failure to object is
irrelevant. ,IVrisdictional conditions are absolute under
the Act, cannot be waived, and can always be considered at
any time in the proceedings. See Awards
8886, 9578,
and
10315."
Inasmuch as Supplement No.
6
to the Agreement is applicable to the instant
dispute, the procedures therein prescribed must be followed before this Board may
consider the case. This Board. may not properly ignore valid and legally binding
agreements entered into in good faith by the parties. The requirements of Supplement
No.
6
to the Agreement have not been complied with; its provisions have not been
invoked. There is no record of any conference or negotiations held among the crafts
involved in this case nor any indication of any agreement reached under Supplement
No.
6
regarding the conflicting jurisdictional claims before us. Accordingly, we
hold that this case is prematurely presented to this Board for adjudication and
we have no jurisdiction to hear and decide the merits of the case. We have no
alternative but to dismiss the claim.
FOM 1
Page
4
A W A R D
Claim dismissed.
Attest: Executive Secretary
National Railroad Adjustment Board
Award No.
8283
Docket No,
7956-T
2-C&O-MA-'
80
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 26th day of March,
1980,