Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9949
SECOND DIVISION Locket No. 9444-T
2-SP-FO-'84
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( Int'1. Brotherhood of Firemen and Oilers
( System Council No. 16
Parties to Dispute:
( Southern Pacific Transportation Company
Dispute: Claim o f Employes:
1. That, in violation of our current agreement, Mr. C. O. Perkins was
furloughed at end of tour of duty May 6, 1980.
2. Then, since May 6, 1980, others than members of the International Brotherhood
of Firemen & Oilers (Carmen and Foremen) have performed the duties that were
previously performed by Mr. C. O. Perkins.
3. That Mr. C. O. Perkins should immediately be restored to his position with
all seniority rights unimpaired, vacation, health and life insurance be paid
and compensated for all time lost plus 6% annual interest on all such lost wages,
during the time held out of service.
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 employes 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 pivotal issue in this dispute is whether Claimant exclusively performed
the work he asserts was transferred to carmen forces when his position was abolished
on May 6, 1980. Claimant argues that he was unjustly furloughed in violation
of Rule 1 of the Controlling Firemen and Oilers Agreement which he contends
reserves this work to laborers covered by this Agreement. He avers that such work
as
cleaning offices,
cleaning pits, cleaning up shop ground (both roundhouse and
car shops) sandhouse man, locomotive supplyman, transfer and turntable operator,
fueling and sanding all locomotive engines in diesel shops was performed by him
at the work locations where carmen now performed this work and maintains these
assignments violate Rule 1.
Form 1 Award No. 9949,
Page 2 Locket No. 9444-T
2-SP-FO-'84
Carrier contends that his position at Hearne, Texas was reduced because of
declining business conditions and avers that over 150 Mechanical Department
employees were force reduced on the Southern Pacific, Texas and Louisiana Lines.
It argues that Rule I neither defines nor describes the work of the position held
by Claimant nor specifically reserves the work delineated in the claim letter.
It asserts that the duties of this position have changed during the past few years,
but more pointedly contends that carmen have serviced locomotives in the yard and
maintenance of way crews have performed the cleaning of pits.
The Carman's Organization as a third party of interest apprised the Board by
letter, dated February 3, 1982 that it will not intervene herein, but disclaimed
waiver of any further rights to intervene in a similarly configured dispute.
In our review of this case, we cannot be unmindful of our requirement tl:!at a part
asserting work exclusivity must demonstrate that a specific rule or provision:
reserves such work to him. The Scope Rule (Rule 1) herein does not define or list
the varied and concomitant duties of each specified position and Claimant's
assertion of past practice exclusivity has not been buttressed by persuasive
corroborative evidence. It may well be that Claimant performed these duties or a
substantial portion of them in the past but he provided us no proof that he alone
exclusively performed them. Assertions alone, particularly where denials
are present, are insufficient to justify an affirmative award. Without this proof, we
would be interpolating by judicial inference that his claim is valid, which hauld
contradict our evidentiary requirements for work exclusivity claims. In Second
Division Award No. 7378, which sets forth our basic standard for exclusivity
assessments, we stated in part that:
"There is ample precedent, in rulings by this Board, that
in the absence of an express assignment of work by a specific rule
or provision of an Agreement, past practice is critical in any
determination as to whether that work, within the confines of the
Agreement, belongs exclusively to a particular craft.
Applying this benchmark principle to the facts at hand, we cannot conclude that
Claimant was able to establish that he exclusively performed the work contested.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
i
At test : s
Nancy J. e- Executive Secretary
Dated at Chicago, Illinois, this 13th day of June, 1984