Form 1 NATIONAL RAILR0AD ADJUSTMENT BOARD Award No. 8778
SECOND DIVISION Docket No. 8356-T
2-CR-EW-181
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( International Brotherhood of ELectrical Workers
Part Les to Dispute
( Consolidated Rail Corporation
Dispute: Claim of Employes:
1. That the Consolidated Rail Corporation violated the controlling agreement
of System Federation No.
54
effective November 1, 1923 on December 9,
1977 when the Assistant C & S Supervisor forcibly broke into the Big
4
Yard Radio Shop obtaining and subsequently exchanging the batteries in
the Puller Radios.
2. That Radio Maintainer G. R. Jackson be compensated in the amount of
2.8 hours at the overtime rate by reason Assistant C & S Supervisor
performed Electricians work on December 9, 1977.
Finding::
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.
Claimant, a first trick Radio Maintainer at Avon, Indiana, requests 2.8 hours
of pay at the overtime rate because a carrier supervisor allegedly performed work
exclusively reserved to the electrical craft. During the third shift on December 9,
1977, the carrier's Assistant Supervisor broke into the Radio Shop and obtained
batteries for the portable radios used by the Puller crews. The third trick radio
maintainer was absent and so no radio maintainer was on duty when the supervisor
procured the batteries. After obtaining the batteries, the supervisor distributed
them to the Puller crews who presumably placed the batteries in the portable radios.
The claimant asserts that he should have been called prior to his shift because
the supervisor was performing work normally performed by the electrical workers_
Specifically, the organization contends the supervisor's acts violated Rule:
29(a) of the applicable agreement, Section
506
of Public Law 93-236 (Regional Rail
Reorganization Act of 1973) and company policy. The carrier raises five arguments.
First, the organization, which has the burden of proof, has not shown any of the:
work performed by the supervisor is within the scope of Rule 29(a). Even if the
supervisor did perform mechanics' work the carrier argues that a severe winter
storm created an emergency. The puller crews needed working portable radios to
Form 1
Page 2
Award No. 8778
Docket No.
8356-T
2-CR-Ew-'8.
properly perform their work in the snow storm. Second, according to the carrier,
this Board lacks jurisdiction to resolve disputes under the Regional Rail Reorganization Act of
1973
since all such disputes must be processed through a
Special Board of Adjustment under Section 507 of the Act. Third, carrier policy
is also not within the enforcement power of this Board. Fourth, the organization
failed to cite any rule on the property or in its submission to this Board to support
the request for
2.8
hours of overtime pay. And fifth, the work performed by the
supervisor was so insubstantial to be, at most, a _de minimis violation of the
applicable agreement.
This Board is empowered to resolve disputes within the purview of Section
3
of the Railway Labor Act. We lack the jurisdiction to decide if the carrier violated
Section 506 of the Rail Reorganization Act of
1973.
Second Division Award No.
8073 (Roukis). Similarly, a determining a breach of company policy is outside
the scope of our jurisdiction unless the policy is incorporated into an express
or implied agreement between the organization and the carrier. Because the
organization has not cited any such agreement in, the record, we cannot consider
the alleged violation of company policy.
In this case we need not consider whether or not the work performed by the
supervisor on December
9,
1977 was exclusively reserved to the electrical craft
because any intrusion into the work exclusivity was so insignificant to constitute,
at most, a de minimis violation. The supervisor's procurement of batteries took
little time and the work was inconsequential so that if there was a violation of
Rule 29(a), it was insignificant. Second Division Award No.
7983
(Cushman);
Secoid Division Award No. 7587 (Eischen). Thus, we must deny the claim.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
B Y_
os marie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 28th day of October,
1981.
NATIONAL RAILROAD ADJUSTNENT BOARD
By Order of Second Division