F orm 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
9076
SECOND DIVISION Docket No. 8434-T
2-BN-BK-'82
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( International Brotherhood of Boilermakers, Iron Ship
Parties to Dispute: ( Builders, Blacksmiths, Forgers and Helpers
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That, in violation of the current agreements, Burlington Northern Inc.
improperly assigned other than classified Blacksmiths, namely maintenance
of Way Employees, to the work of welding and building up of frogs and
switch points at its new shop located at Galesburg, Illinois.
2. That accordingly, the Carrier be ordered to additionally compensate
Blacksmiths J. Martinson, R. Albertson and R. Anderson, and Blacksmith
Helper H. Germain for April
6, 1978
and for each date thereafter until
the violation is corrected.
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, for an unspecified amount of compensation,
on behalf of three Blacksmiths and one Blacksmith Helper stationed at the Carrier's
reclamation plant at Brainerd, Minnesota. The Organization contends that sometime
in late
1977
or early
1978,
the Carrier began to improperly assign work consisting
of the building up and welding of frogs and switch points to workers represented
by the Maintenance of Way Employes at a Galesburg, Illinois facility. The
Organization raised this claim on the property on June
6, 1978
as a continuing
claim under Rule 34(d).
The Carrier raises a threshold objection to this claim by contenting the
claim is untimely under Rule 34(b) since the claim was instituted more than sixty
days after the Carrier ostensibly began to assign Blacksmiths' work to other
employees. We must overrule the objection because this claim covers repeated
occurrences of the same violation. The claim alleges the Carrier violated the
contract each time the Carrier assigned the Maintenance of Way employees to build
up frogs or switch points which would have usually been sent to Brainerd. Thus,
the Organization's claim concerns a continuing breach of the labor contract under
Form 1 Award No.
9076
Page 2 Docket No. 8434-T
2-BN-BK-182
Rule 34(d). Second Division Award No. 851-2 (Roukis). However, Rule 34(d)
clearly limits any monetary recovery by the organization to sixty days prior
to June
6, 1978.
On the merits, the Organization cites Rule 64 of the April 1,
1970
Agreement
which states, in part:
"Blacksmiths' work shall consist of ... welding or building
up of frogs, switch points, cross overs, puzzle switches and
low rail joints when done in Maintenance of Equipment shops
... and all other work generally recognized as blacksmith
work." (Emphasis added.)
For factual support of its claim, the organization relies on a newsletter issued
by the Carrier and the historical practice on the former Chicago, Burlington &
Quincy ("C, B & Q") as well as the established practice since the
1970
merger.
An article in the Fall-Winter
1977
Edition of the Carrier's Chicago Region
Newsletter related, in detail, the work performed by four Maintenance of Way
employes at Galesburg. In the article, the Carrier's Regional Engineer
Maintenance said:
"Galesburg is also quite central to the Chicago Region, so
we chose it as the location for trying a new concept in
Iwo
repairing frogs and switches .
...
Prior to this year, when these items became too worn to
continue using, we took the old ones out, put new or
rebuilt ones in place, and sent the old ones to Brainerd,
Minn. There, they were either repaired or scrapped."
According to the Organization, the Carrier's newsletter conclusively demonstrates
that the Claimants were deprived of work since frogs and switches which would
have been rebuilt at Brainerd were now built up at Galesburg. The newsletter
article also stated that new jigs were installed at Galesburg and the Maintenance
of Way welders were provided with, "... highly refined training..." Therefore,
the Organization alleges that the Galesburg Maintenance of Way employes were
learning new work which was outside their traditional jurisdiction of welding
frogs and switch points in the yards or along the rail line. lastly, the
Organization maintains it attained system wide exclusivity over the disputed work
on the merged system after the Carrier closed its Eola and South Tacoma Plants. The
frog and switch point work formerly performed at those locations was transferred
to Brainerd.
Form 1 Award No.
Page
3
Docket No. 8434-T
2-BN-BK-'82
The Carrier, on the merits, defends the claim by construing the newsletter
article in a different fashion. According to the Carrier, there was an improvement in the working conditions for the Maintenance of Way employes but they had
been performing the same work at the Galesburg facility that they previously
performed outside the shop. The Carrier's primary defense is that, regardless
of the type of work the Maintenance of Way employes perform, the Galesburg facility
is not a "Maintenance of Equipment shop" within the meaning of Rule 64.
The Maintenance of Way Organization has filed a third party submission
contesting the Claimants' right to perform the disputed work. The Maintenance
of Way employes argue that the four welders at Galesburg have exclusive jurisdiction
over the work pursuant to past practice on the former C, B & Q system and under
Rule
55
of the current labor agreement in effect between the Carrier and the
Maintenance of Way employes.
The primary issue in this case is whether or not the Galesburg facility
is a Maintenance of Equipment shop within the meaning of Rule 61+. The parties
have exhaustively presented their respective positions on this issue. We attach
little weight to the label given the shop, or to the nature of the department which
runs the shop. Rather we must determine the type of shop based on the function
it serves. While the question is close, we rule that the Carrier's newsletter
shows that the Galesburg facility is best characterized as a Maintenance of
Equipment shop.
Some of the work performed at Galesburg, as the Carrier rightly points out,
is precisely the same work the Maintenance of Way employes previously performed
outside. However, part of the work is new. The introduction of the new work,
i.e., the building up of frogs and switch points at Galesburg which would have
been sent to Brainerd, constitutes a violation of Rule
64.
The Carrier could
properly improve the welders' working conditions at Galesburg (including giving
them a room in the shop). However, the Carrier deprived Blacksmiths of work
expressly reserved to them under Rule
64
when it assigned the welders to build
up frogs and switch points which formerly would have been sent to Brainerd. Rule
55
of the Maintenance of Way agreement does not precisely cover the disputed
work since Rule
55
refers only to welding frogs and switch points while the
Blacksmiths classification of work rule refers to both the welding and building
up
of frogs and switch points (provided the work is performed in a Maintenance
of Equipment Shop).
Though we have concluded that the Carrier violated Rule 64, the Organization
has failed in its Statement of the Claim to specify any remedy. This Board cannot
speculate on how many frogs and switch points which would have been sent to
Brainerd were, instead, built up at Galesburg. Since the Organization has not
incorporated any proof regarding the amount, if any, of compensation due the
Claimants, we are precluded from awarding any monetary relief. Because there was
a contract violation, we will sustain the claim but without any compensatory
award.
Form 1 Award No. 9076
Page
4
Docket No. 8434-T
2-BN-BK-182
A W A R D
Claim sustained to the extent consistent with our findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad
Adjustment Board
BY ' ~`-',~'t--~
.f
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 19th day of May, 1982.
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