Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8558
SECOND DIVISION Docket No. 8372
2-SCL-EW-181
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( International Brotherhood of Electrical Workers
(
Parties to Dispute:
(
( Seaboard Coast Line Railroad Company
Dispute: Claim of Employes:
1. That in the Waycross, Georgia Back Shops on November
8, 9, 10, 11, 14,
1,1
16, 17, 18,
21, 22, 23,
25, 28,
29
& 30, 1977
and December 1, 2, &,
5,
1977,
the Seaboard Coast Line Railroad Company violated the Controlling
Agreement when Electrician Helper was assigned to operate overhead
traveling crane instead of calling and/or notifying Overhead Traveling
Crane Operator who was available to operate the overhead traveling
crane on the above mentioned dates.
That Overhead Traveling Crane Operator R. D. Murray be compensated
8z
hours at the punitive rate of pay each date for the dates of November
8,
15,
21 & 25,
1977
and December 1,
1977;
Overhead Traveling Crane
Operator J. A. Peacock be compensated
8i
hours at the punitive rate oz
pay on each date for the dates of November
9, 16,
22 &; 28,
1977
and
December
2, 1977;
Overhead Traveling Crane Operator L. Herrin be
compensated
8~
hours at the punitive rate of pay each date for the dates
of November 10,
17, 23 _;. 29, 1977
and December
5, 1977;
Overhead
Traveling Crane Operator M. King be compensated
ez
hours at the punitive
rate of pay each date for the dates of November
11 & 18, 1977;
and
Overhead Traveling Crane Operator J. T.Taylor be compensated
8~
hours
at the punitive rate of pay for each for the dates of November 14 &. 30,
. 1977
by reason of Electrician Helper being assigned to operate the
overhead traveling crane when Overhead Traveling Crane Operators were
available in violation of Rules
15, 95
and Appendix "Q" of the current
Agreement.
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,
1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Form 1 Award No.
8558
Page 2 Docket No.
8372
2 -SCL-EW-' 81
The pivotal question in this dispute is whether or not Carrier violated
Agreement Rule
95,
paragraph (A) and (C) wAien it assigned an electrician helper
to
perform the work of the regularly assigned crane operator, who was off sick,
on the claimed dates.
Claimants contend that the aforesaid assignment specifically violates Rule
95
(C) while Carrier avers that the parties negotiated understanding vis this Rule,
permitted the utilization.
of
an electrician helper. Rule
95
(C) which is germane
to this impasse is verbatively referenced as follows:
"When necessary to fill electric crane operator positions,
electrician helpers will be used, if there are no electric
crane operators available."
In our review of this case, we will discuss at first the new materials and
arguments contained in Carrier's ex parte submission. Careful analysis of the on
situs exchange
of
correspondence, particularly Carrier's January 12 and June
5,
1978
declination letters, does not reveal that it mentioned the withdrawn May,
1968
claim or that clearly definable past practice supported its position. It
is a new argument, which we are precluded from considering under Circular No. 1
procedures and we must therefore exclude it.
Correlatively, when we consider the dispute's substantive merits we find
the Claimants' arguments were persuasive. Rule
95
(C) is specific and unambiguous.
It permits the assi-nment of electrician helpers, when no electric crane operators
are available. Claimants, to be sure, did work their regular assignments on the
days when the electrician helper was used, but that would not prevent their being
called for overtime assignments. Carrier argues in its January 12,
1978
letter;,
that it was the negotiated understanding that electrician helpers would be used
as relied crane operator, but it did not offer proof that a regularly assigned
crane operator, who performed his regular work, would not be considered as being
available for a relief assignment that same day. If the word "available" as
contextually stated in Rule
95
(C) was meant to exclude regularly assigned crane
operators from performing such work, we have no evidence that it was, in fact,
consistently observed by the parties. There is an absence of acquiescence.
Claimants had noted the
14
claims regarding availability and notification, which
Carrier had acknowledged in
1971.
(General Chairman's February
27, 1978
letter.
The fact specifics, admittedly, were different, but not the conceptual emphasis.
Plain and unambiguous words are undisputed facts. When the language used is clear
and explicit, we are constrained to give effect to the thought expressed by the
words used. An affirmatory defense are obligatory upon Carrier, and we do not find
that it adequately met this proof requirement. We will sustain the claim.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSUIENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
-:.'
By
000,
__, ':
.,Rosemarie Brasch - Administrative Assistant
Dated l t Chicago, Illinois, this 7th day
of
January,
1981.