Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 881.8
SECOND DIVISION Docket No. 86'79
2-MP-EW-'81
The Second Division consisted of the regular members and in
addition Referee Thomas F. Carey 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 Rules 1 and 21+ (a) of the Communications Agreement effective August 1, 1977; Memorandum. of August 12, 1960.d; and, Article III of the September 25, 196+ Agreement when they assigned Electrician S. D. Vanderlinden to perform Communications Maintainers' work, thus, denying Communications Maintainer C. L. Qualls at Kansas City, Missouri his contractual rights under the Agreements and his rights in the division of work under the Memorandum, on November 11, 1978.

2. That, accordingly, the Missouri Pacific Railroad Company be ordered to compensate Communications Maintainer C. L. Qualls two and seven-tenths hours (2.7') at the overtime rate for November 11, 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 employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 193+.

This Division of the Adjustment Board has jurisdiction aver 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. C. 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.

Rather than notify the certain personnel at the Carrier's Dtesel Shop in Kansas City, Missouri of the need far a Communications Maintainer to remove and install radio hand set on MP Units 2990 and MP Unit 2254, respectively, Electrician Vanderlinden was instructed at x+:30 a.m. by Outside.Pit Foreman Sisk on November 11, 1978 to perform Communications maintainers' work, i.e., to remove the radio hand set from MP Unit 2990 and install said radio hand set on MP Unit 225+. The work
Form 1 Award No. 8818
Page 2 Docket No. 8679
2-MF-EW-181

performed by Electrician Vanderlinden is exclusively Communications MAintainers' work under the Agreement and a Memorandum reached with the Carrier.

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 employee in the Communications Department specified in this Agreement engaged in the construction, installation, maintenance, repairs, inspection, dismandling and removal of telephone and telegraph transmission 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 *lug-in modular units requiring no specialized knowledge or skills to restore service in cases of emergency.

NOTE: Nothing shave 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:

"RULE 24. SENIORITY

(s) Seniority of employee in each class covered b y 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 system-wide practice on the property since modular type hand sets have been used.

The arrangement whereby 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 mown as "communications maintainers").
Form 1 Award No. 8818
Page 3 Docket No. 86'79
2-MP-EW-181

Said memorandum was signed by the two union Chairmen and embodied as page 27 in the Parties' Agreement of August 1, 1977. It provides:

"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 enclosed 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 equipment relative to radio apparatus.

In the event telephone maintainers would require assistance in changing out antennae, electricians will assist them on

these jobs.

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 modular within the meaning of Rule 1. Conversely, the Organization contents 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 wlrat 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 wired to the control head as compared to the currently used quick release "outlet arid 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 card" 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 if 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 an unforeseen combination of circumstances which calls for immediate 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 mike it part o£ their Agreement. Both became controlling in the instant dispute.
Form 1 Award No. 8818
Page 4 Docket No. 8679
2-MP-EW-181

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.

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 Carrier 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 fm 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 RAILROAD ADJl'3SDEiVT BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

By
semarie Brasch - Administrative Assistant

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