Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 881!6
SECOND DIVISION Docket No. 8661
2-MP-EW-'81
The Second Division consisted of the regular members and in
addition Referee Thomas F. Corey when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Missouri Pacific Railroad Company

Dispute: Claim of Employee:

1, That the Missouri Pacific Railroad Company violated Rules 1 and 24 (.a) of the Communications Agreement effective August 1, 1977; Memorandum of August 12, 1960,d; and, Article III of the September 25, 1961+ Agreement when they assigned Electrician S. D. Vanderlinden to perform Communications Maintainer C. L. Quells at Kansas City, Missouri his contractual rights in the division of work under the Memorandum, on November 18, 1978.

2. That, accordingly, the Missouri Pacific Railroad Company be ordered to compensate Communications Maintainer C. L. Quells two and seven-tenths hours (2.7') at the overtime rate for November 18, 1978.

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 employee involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1931+.

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

Parties to said dispute were given due notice of hearing thereon.

The record indicates that the claimant was employed by the Carrier as a Communications Maintainer with assigned work week and bulletined hours, Monday through Friday, 7:00 a.m. to 3:00 P.m., stand-by day - Saturday, rest day - Sunday; headquarters - Kansas City, Missouri.

Mr. S. D. Vanderlinden is employed by the Carrier as an Electrician with assigned work week and bulletined hours, Thursday through Monday, 12 midnight to 8:00 a.m., rest days - Tuesday and Wednesday.

The Foreman on duty November 18, 1978 did not notify the certain personnel) at Carrier's Diesel Shop in Kansas City, Missouri of the need for a Communications Maintainer to replace the missing radio hand set on MP Unit 3067, but instead, instructed Electrician Vanderlinden at approximately 7:30 a.m. to remove the radio hand set from MP Unit 3091 using it to replace the missing radio hand set: on MP Unit 3067. The work performed by Electrician Vanderlinden is exclusively Communications Maintainers' work under the Agreement and a Memorandum reached with the Carrier.
Form 1 Award No. 8816
Page 2 Docket No. 8661
2-MP-EW-181

The Organization contends violation of the rules governing scope (Rule 1) and Seniority (Rule 24(a)) which rules establish the exclusivity of the work in question which reads:

"RUIE 1. SCOPE

This Agreement governs the rates of pay, hours of service and working conditions of all employes in the Communications Department specified in this Agreement engaged in the construction, installation, maintenance, repairs, inspection, dismantling and removal of telephone and telegraph tratxdnission and switching systems and associated equipment such as telephone, telegraph and teletype equipment, fixed and mobile radio used for railroad operational purposes, (including microwave systems), closed circuit television, interoffice communications systems, yard speaker systems, and all work generally recognized as communications work; provided, however, that this will not prevent others acting under the direction of a Communications Supervisor or District Officer from utilizing spare equipment limited to plug-in modular units requiring no specialized knowledge or skills to restore service in cases of emergency.

NOTE: Nothing above shall prohibit a Supervisor in the Communications Department from inspecting and testing communications equipment and circuits in the performance of his duties."

and, Rule 24 (a) - Seniority of the same Agreement which reads:

"Rum 24. SENIORITY

(a) Seniority of employes in each class covered by this Agreement shall be coextensive with the scope of this Agreement."

The Carrier raises as a defense the contentions that the replacement of modular type handsets is in accordance with the Scope Rule of the Agreement of August 1, 1977, covering the claimant and is in accordance with the syste-wide practice on the property since modid&r.type,,hand sets have been used.

The arrangement vhereby train and engine employes, Mechanical Department employes, including supervisors, replaced defective hand sets is system-wide. At all locations where runs originate, hand sets are replaced by any employe available the Carrier asserts.

The Organization relies upon a memorandum of August 12, 1960 issued in the settlement of a dispute with respect to the allocation of work between electricians and "telephone maintainers" (currently known as "communication maintainers"). Said Memorandum was signed by the two union Chairmen and embodied as page 27 in the Parties' Agreement of August 1, 1977, It provides:
Form 1 Award No. 8816
Page 3 Docket No. 8661
2-MP-EW-181
"We have agreed between division of work with reference to
electricians and telephone maintainers captioned rolling
stock. On the rolling stock we have agreed that the original
installation complete, with the exception of the radio units
and locked in the radio rack, will be electricians' work.
Regarding maintenance, electricians will maintain all of the
conduit and the wiring, including the primary power supply.
Telephone maintainers' work will include maintenance, repair,
replacement of hand sets, antennae, speakers and other equip
ment relative to radio apparatus.
In the event telephone maintainers would require assistance
in changing out antennae, electricians will assist them on
these fobs."

The Parties disagree as to meaning and application of what was meant to be covered by the reference to "plug-in modular units". The Carrier asserts that the "plug-in handset" is a plug-in macular within the meaning of Rule 1. Conversely, the Organization contends the "plug-in modular" citation in Rule 1 references a "computer card/element" with its own purpose and does not apply to radio hand sets.

The Parties further dispute what the "practice" in the system has been concerning the replacement of hand sets since the "plug-in" variety was introduced some years ago.

The record indicates that in the past certain radios had the hand sets wined to the control head as compared to the currently used quick release "outlet and plug-in" species.

The language of Rule 1 of the Agreement, concerning "plug-in modular units", does not specifically delimit the species to a single particular "computer coral" as advanced by the Organization. Conversely, it does specify special types that: require "no specialized knowledge or skills" to replace. The condition precedent to replace such units, however, is contractually constrained to those circumstances necessary "to restore service in case of emergency".

The Carrier argues that the failure to have an operative radio "creates an emergency 5:f the train is delayed by reason of the crew refusing to leave the terminal". The Board in Third Division Award 10965 (Dorset') defined an emergency as en unforeseen combination of circumstances which calls for iminedi.ate action.

The 1960 memorandum was explicit in classifying the "replacement of hand sets" as work of the then "telephone maintainers". This memorandum was not rescinded or superseded by the 1977 Agreement, but rather the Parties elected to make it part of their Agreement. Both become controlling in the instant dispute.

The record fails to indicate any effort of the Carrier to advance its "de minimus" defense on the merits at the lower levels; consequently, such argument: must, therefore, be deemed barred.

e

Form 1 g Award No. 8816
Page 4 Docket No. 8661
2-MP-EW-181

The Board notes that Rule 1 and the 1960 memorandum must be read in "part materia" and each construed in reference to one another. Together they stipulate that the "replacement of hand sets" is the normal work of the "communications maintainers", but in an emergency those hand sets, which are of a "plug-in modular" species, can be replaced by "others", under the direction of a Communications Supervisor or District Officer.

The evidence presented in the instant dispute is found to be inconclusive as to whether or not a bona fide emergency existed sufficient to permit the discretionary action taken by the Carrier. The record is not clear if the disputed work of replacing an inoperative hand set was a known condition requiring routine replacement or an emergency under Rule 1; requiring action necessary to restore service.

The Cater has failed to prove its assertion and defense by competent evidence that an "emergency" existed. Absent some proof by the Carrier of an emergency, which required prompt action and which could. not wait to be handled as routine communication maintainers work as per the agreement, that Agreement is found to have been violated.

Absent the showing of an emergency, and given the Board's conclusion that the Carrier violated the Agreement, this determination by the Board should serve as a caution against such assignments in the future. However, the evidence reveals that the disputed work is sufficiently minimal so that the Board finds without prejudice that no compensatory award is deemed warranted for this particular infraction.

A W A R D

Claim sustained to the degree and limits specified above.

NATIONAL RAIIROAD ADJUSTMENT BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

By
semarie Brasch - AclMt1Tistrative Assistant

Date at Chicago, Illinois, this 10th day of November, 1981.