Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8966
SECOND DIVISION Docket No.
8367-T
2-N&W-MA-'82
'.flee Second Division consisted of the regular members and in
addition Referee John 13. LaRocco when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
(
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That the Norfolk and Western Railway Company violated the controlling
Agreement when it assigned the operation of Worksaver Fork Truck,
N&W No.
9317,
to sheet Metal Worker L. Gesky at Decatur, Illinois
Shops on November 1,
1977.
2. That the Norfolk and Western Railway Company continues to violate the
controlling Agreement by repeatedly assigning the operation of the
aforementioned Fork Truck to other than Machinist Helpers at Decatur
Shops.
3.
That accordingly, the Norfolk and Western Railway Company be ordered
to compensate Machinist Helper B. J. Rawls in an amount equal to four
(4) hours at the straight-time rate of pay.
4. That accordingly, the Norfolk and Western Railway Company be ordered
to compensate the appropriate Machinist Helper as taken from the
overtime board in an amount equal to four (4) hours at the straighttime rate of pay for each such violation after November 1,
1977,
when
the Norfolk and Western Railway Company assigns other than Machinist
Helpers to the operation of the aforementioned Fork Truck.
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.
The Organization brings this claim on behalf of Claimant, a Machinist Helper,
for four hours of pay because the Carrier allegedly improperly assigned a sheet
metal worker to operate a Yale 3,000 Pound Worksaver Fork Truck on November 1,
1977
at the Carrier's Shop in Decatur, Illinois. In addition, the organization
presents this Board with a continuing claim because the Carrier has repeatedly
and continuously permitted employes other than machinist helpers to operate the
:-.-~, 1~ Award No.
8966
a,, , n
Docket No.
8367-T
2 -N8cW-MA-'
82
fork truck after November 1,
1977.
The Organization urges us to award four
hours pay to unidentified machinist helpers on the overtime board for each
subsequent alleged misassignment of the work. The Organization contends the
operation of this small fork truck is exclusively reserved to machinist helpers
pursuant to Rule
58
of the applicable agreement. While the Organization concedes
that employes in other crafts have regularly run the fork truck, it argues that
this practice is contrary to the Carrier's policy set forth in a January 18,
1967
bulletin issued by the Master Mechanic.
The Carrier argues that the Organization has failed to prove the disputed
work is expressly and exclusively reserved to machinists by either Rule
58
or
historical practice. As to the
1967
bulletin, the Carrier contends nothing in
the Master Mechanic's communication shows any intent to reserve fork truck
operation to machinist helpers. Also, the Carrier asserts the allegations of
continuing violations must be dismissed due to vagueness as well as lack of
proof.
The Boilermakers and Sheet Metal Workers endorse the Carrier's position and
reiterate that members of their crafts leave often used the fork truck in connectinwith the performance of work pertaining to their crafts. The Electrical Worker:;
presented evidence that Electrical Workers have operated similar fork trucks not
only at Decatur but also at other points along the Carrier's system.
To show the disputed work belongs exclusively to machinist helpers, the
Organization shoulders the burden of proving either that the work is expressly
and specifically reserved to machinist helpers by Rule
58
or that machinist
helpers have traditionally, historically and customarily performed the work to
the exclusion of all others. Second Division Awards No.
557'7'
(Ives); No.
6958
(Lieberman); No.
7141
(Sickles). Rule
58
refers to "... portable power
driven cranes, trucks and tractors..." but there is no language suggesting
the operation of small worksaver fork trucks is covered by the rule. Since the
Organization concedes that there is a longstanding past practice that employes
other than machinist helpers have regularly performed the disputed work, the
Organization has not satisfied its burden of proof. Nor can the Organization
rely cm the
1967
bulletin because any policy contained in the bulletin does not
supersede the clear, established past practice on this property. Therefore,
we must deny the entire claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment board,
BY '_~_C --~-~- '' 'd ~L~?`_f _ . . . . _ _. __. _ _ .
._- 4i
Dated Brasch - AdminLstrative Assistant
Dated at Chicago, Illinois, this 10th day of March, 7 982.