Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8640
SECOND DIVISION Docket No. 8177-T
2-MP-EW-181
The Second Division consisted of the regular members and in
addition Referee Kay McMurray when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated the procedural
provisions of Rule 27(a) of the Communications Agreement effective
August 1, 1977 by failing to state in writing their reasons for such
disallowance of claim in their letter dated February 24, 1978.
2. That the Missouri Pacific Railroad Company violated Rule 1 of the
Communications Agreement effective August 1, 1977 and Article III of
the September 25, 1964 Agreement when Carrier assigned on Friday,
December 30, 1977, Signalman Homer Hawkins to perform Communications
Maintainers' work, i.e., make the annual FCC Radio Frequency and
Modulation check, and inspection additionally, install a second channel
to the existing radio with a transmit and receive crystal of 160.470
MHZ at Carrier's Base Station at Mitchell Yard, Mitchell, Illinois.
3. That, accordingly Carrier be ordered to compensate Communications
Maintainer H. G. Heise for December 30, 1977 two hours and forty
minutes (2'40") at the time and one-half rate.
Findings:
The Second Division oUthe 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.
Claimant, Mr. Heise, herein seeks pay for work performed by another individual
because, allegedly, the work by contractual commitment belongs to the craft of
Claimant and not to the craft of the party utilized.
At the onset the Organization seeks a favorable ruling for the reason that the
Carrier failed to meet the time limits embodied in Rule 27(a). That rule reads
in pertinent part:
"Should any claim or grievance be disallowed the carrier shall,
within 60 days
...
notify whoever filed the claim
... in
writing of the reasons for such disallowance."
Form 1 Award No.
8640
Page 2 Docket No.
8177-T
2-MP-EW-181
The record reveals that well within the time limits the carrier notified the
Organization of its declination of the claim. The stated reason for denial was:
Mitchell is a joint terminal in which maintenance is performed by Communication
Maintainers represented by I.B.F.W. and the B.R.S. Therefore claim has no merit
and is denied."
The organization maintains that the denial is inconclusive and therefore the
reasons for denial do not constitute a declination.
We disagree. As the record points out the problem stems from jurisdictional
matters involving two crafts and while the response may not have met the
Organization's expectation it does give a reason with substance as required by
the contract. We find that the time limit rule was not violated.
The carrier points out that the geographical area under consideration was
a part of the old C&EI route which was merged into the Missouri Pacific Railroad
on October
15, 1976.
At the time of the merger C&EI employees doing such work
were represented by the B.R.S. At the time of the merger the bargaining agreements
between the carrier and I.B.E.W. and between the carrier and the B.R.S. were not
altered by reason of the merger and continued to apply to the same territories
to which they applied prior to the merger. Consequently the use of an individual
at Mitchell under the terms of the B.R.S. agreement was proper and did not violate:
the I.B.E.W. agreement as herein claimed. It further points out that the National.
Mediation Board had certified the B.R.S. as bargaining agent for communications
workers on the C&EI property which included Mitchell.
By written submission the B.R.S. avers that the carrier's statements are
correct and the work was properly performed by the individual represented by the
B.R.S.
Contra the foregoing record the claimant's Organization seeks to enforce
their claim by pointing out in the submission that the carrier had made numerous
statements to the effect that Mitchell yard was a part of the Missouri Pacific
Railroad and that it was part of the Missouri Pacific St. Louis Terminal.
There is little explanation of the context within which those statements were
made. It is evident that the Mitchell yard is now a part of the Missouri Pacific
Railroad for corporate purposes and has been since the merger. However, statements
to that effect do not negate the position of the carrier and the Brotherhood of
Railroad Signalmen with respect to representation rights and past practice.
Claimant takes no specific exception to the claim by the carrier and the B.R.S.
regarding the history and representation rights determined by the parties and
the N.M.B. This Board has no jurisdiction over such matters.
The complaining organization simply asserts that its contract applies and
attempts to establish through its provisions that Claimant should be paid.
We find, based on the foregoing and the entire record, that Claimant organization
has failed to present convincing evidence that past practice and representation
rights are other than as recited by the carrier and the B.R.S. We, therefore
have no alternative but to deny the claim.
Form 1
Page
3
AWARD
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
Award No. 8640
Docket No. 8177-T
2-MP-Ew-'81
NATIONAL RAIIROAD ADJUSTMENT BQARD
By Order of Second Division
By
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 4th day of March,
1981.