Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9142
SECOND DIVISION Docket No. 9201-T
2-DM&IR-CM-'82
The Second Division consisted of the regular members and in
addition Referee John B. IaRocco when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
( Duluth, Missabe & Iron Range Railway Company
Dispute: Claim of Employer:
I. That the Duluth, Missabe and Iron Range Railway Company violated the
controlling Agreement, particularly Rule
57,
when they arbitrarily
assigned other than the Carmen's Craft to adjust a shifted load on
the repair track at Proctor, Minnesota, on March
25, 1980.
2,
That accordingly, the Duluth, Missabe and Iron Range Railway Company
be ordered to compensate Cayman Richard C. Goerts foes
(4)
hours at
the pro-rata rate for March
25, 1980.
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 over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The pertinent facts are not in dispute. On March
25, 1980
the Carrier
assigned a member of the Maintenance of Way craft to operate a mobile swing
boom crane to adjust a load of pulpwood logs which had shift in Soo Line
Gondola Car No.
63871
on the repair track at Proctor. Two carmen assisted in
adjusting the load so the gondola could be transferred, in a safe condition,
to a connecting railroad.
The Organization claims the Carrier violated Rule
57
of the controlling
agreement by assigning an employee who was not a member of the carmen's craft
to operate the crane. Claimant, a carman at Proctor, seeks four hours of pay
at the straight time rate as compensation for the alleged contract violation.
In essence, the Organization argues that work consisting of the adjustment of
shifted loads on repair tracks is exclusively reserved to carmen on this
property by both Rule
57
and past practice. To support its argument, the
Organization presented statements from fourteen carmen attesting that carmen
have historically performed the disputed work on repair tracks at Steelton and
Proctor to the exclusion of all other crafts.
Form 1 Award No. 9142
Page 2 Docket No. 9201-T
2-DM&IR.-CM-'82
The Carrier-does not dispute the Organization's assertion that carmen have
traditionally performed the work when a rail car is sent to the Steelton or
Proctor repair tracks for adjustment of a shifted load. However, the Carrier
raises three defenses. First, the disputed work is not expressly reserved to
carmen by Rule
57
so the Organization must demonstrate that carmen have
exclusively and historically performed the disputed work on a system wide basis.
Second, the Carrier proffered invoices from outside contractors who have adjusted
shifted loads to buttress its assertion that carmen alone do not perform the
work. Third, the Carrier points out (and the Organization agrees) that other
crafts adjust shifted loads on cars in transit along the Carrier's right of way
and at remote points where no carmen are stationed. The Carrier contends that
proving exclusivity over the disputed work at only two repair tracks narrows the
Organization's claimed scope of jurisdiction to cover less than the entire
system.
The classification of work provision (Rule
57)
makes no express or implied
reference to the adjustment of shifted loads and the nature of the work is
not universally recognized as work reserved to carmen. Thus, the Organization
must prove the disputed work has been exclusively, historically and traditionally
reserved to the Carmen's craft on a system-wide basis. Second Division Awards
No.
7295
(Twomey) and No.
5921
(Zumas). The contractor's invoices are not
relevant to the issue of exclusivity in this case because all the invoices
submitted by the Carrier are more than seven years old.
The issue is how we should interpret the "system wide exclusivity"
requirement within the context of this dispute. The Organization disavows any
claim to adjusting shifted loads while cars are in transit along the Carrier's
line or at remote points. So, if we view the system wide requirement to broadly
include the adjustment of shifted loads when performed at places other than the
two primary repair tracks, as the Carrier urges us to do, the claim must fail.
On the other hand, the Organization maintains that "system wide" should be
narrowly interpreted to cover only the adjustment of shifted loads at the
Carrier's major repair tracks.
Here, the identical work is often performed outside the shops and repair
tracks. From the record before us, it appears the task of adjusting a shifted
load is performed in the same fashion and with same equipment on the Proctor
and Steelton repair tracks as well as along the Carrier's rail line and at
other points. Absent evidence that the work is, in some manner, performed
differently at places other than the two repair tracks, the term "system wide"
most appropriately includes all locations where shifted loads are adjusted.
Thus, we must deny the claim.
A W A R D
Claim denied.
Form
Page
Attest: Acting Executive Secretary
National Railroad Adjustment Board
BY _
Ros ~e Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 16th
day of
June, 1982.
Award No. 9142
Docket No. 9201-T
2-DM&IR-CM-'82
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division