C:\AWARDS\OUT\2-10671.htm

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10671 SECOND DIVISION Docket No. 10443-T 2-MP-F&O-'85 The Second Division consisted of the regular members and in addition Referee Hyman Cohen when award was rendered. ( International Brotherhood of Firemen & Oilers Parties to Dispute: ( Missouri Pacific Railroad Company Dispute: Claim of Employes: Under the provisions of the current collective bargaining Agreement, Rule 9, Section 1 (d), the following continuing time claim, with the sixty (60) day retroactivity provided for by the Agreement is submitted for and on behalf of the International Brotherhood of Firemen and Oilers and Mr. J. R. Stegall, Laborer, Memphis, Tennessee.

1. That for a period in excess of (60) days Carmen have been assigned to and performed the work that has historically and by Agreement (Scope Rule 1) and the classification of work set forth in Classes 1, 2, and 3 on pages 1, 2, and 3 of the Agreement dated January 25, 1974, been assigned to the (Laborers) Firemen and Oilers.

2. The Laborers' work being performed by Carmen at the Car Department in Memphis is as follows: driving forklifts, operating crane car, unloading material, servicing and supplying cabooses and engines, loading and unloading wheels, and general cleanup of the shop.

3. That this work which amounts to one hundred and twenty-eight (128) hours per week should rightfully and immediately be once again assigned to members of the Firemen and Oilers.

4. That Mr. J. R. Stegall be immediately returned to active service from his laid-off status. Further, that Mr. Stegall be compensated for this continuing violation of the Agreement.

5. That Mr. J. R. Stegall's compensation retroactive sixty (60) days, will include but not be limited to eight (8) hours pay per day, forty (40) hours per week until the work in question is once again properly assigned to the Firemen and Oilers. That the Carrier will reinstate, retroactively, Mr. Stegall's entire health and Welfare Plan, seniority, and vacation benefits as provided for under the current Agreement.

Findings: The Second Division of the Adjustment Board, upon -the whole recozd and allthe 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.

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Form 1 Award No. 10671 Page 2 Docket No. 10443-T 2-MP-F&0-'85 This Division of the Adjustment Board has jurisdiction over the dispute involved herein. Parties to said dispute waived right of appearance at hearing thereon. With the filing of the instant claim, the Organization states that the Carrier has assigned work to Carmen which historically and by Agreement has been assigned to and performed by Laborers. In its claim, the Organization asserts that the Laborers' work that has been performed by Carmen at the Carrier's Memphis, Tennessee facility has consisted of the following: driving fork lifts, operating a crane car, unloading material, servicing and supplying cabooses and engines, loading and unloading wheels and general cleanup of the shop. The claim also requested that Laborer Stegall be immediately returned to active service from his laid off status and that he should be compensated for the continuing violation of the Agreement by the Carrier. On December 10, 1981 a force reduction bulletin was posted at the Carrier's mechanical facilities at its Memphis, Tennessee facility. Among its reduction in force, were two (2) laborers including Laborer Stegall. He was laid off at the end of his shift on December 15, 1981, and has not been recalled to service since that date. Turning to the merits of the dispute, Rule 1 of the Agreement states as follows "SCOPE: Rule 1. These rules govern the hours of service and working conditions of stationary engineers, stationary firemen; power house laborers, fire knockers, fire builders, flue blowers and borers, engine watchmen, sand dryers, transfer-table operators, rod cup fillers, supplymen, front end and fire box blackers, engine wipers and washers, acetylene generator attendants, inside hostler attendants, tractor operators, shop enginehouse and car department laborers (including their gang leaders) and Palestine Reclaimation Plant and Scrap Yard laborers." It must be observed at the outset that Rule 1 does not specifically reserve to Laborers the work set forth in the instant claim. Rule 1 of the Agreement merely lists job titles without specifying the work to be performed by such positions. Rule 1 does not support the claim because it does not provide that specific work is reserved exclusively to the Laborers. See Second Division Awards 2215, 2845, 4235, 4465 and 4748. The Organization refers to the Memorandum Agreement that was signed by the parties on January 25, 1973 amending Rule 1 of the Agreement, effective February 16, 1973. The Memorandum Agreement which amended Rule 1 was designed to provide a uniform pay scale for Laborers based on work skills which were divided into four (4) classes. The Memorandum Agreement does not specify that Form 1 Award No. 10671 Page 3 Docket No. 10443-T 2-MP-F&0-'85 the work duties listed in the four (4) classes are the exclusive province of Laborers. Job duties are specifically listed in each of the four (4) classes based on the varying degrees of skill required. The purpose of dividing such job duties into four (4) categories is to eliminate and redesignate job titles and to adjust rates of pay to eliminate alleged inequities. There is nothing in the Memorandum Agreement to indicate that the job duties set forth in the four (4) classes are to be solely performed by the Laborers. Indeed, this conclusion is reinforced by Paragraph 6 of the Memorandum Agreement which states as follows: "6. The classes as hereinabove established are not intended to expand the scope of the agreement to items or types of work either identical or similar in nature which are presently performed by employes of other crafts under other agreements. The purpose of this provision is to maintain the status quo and is not to be construed in such a manner as to require the assignment of such work presently assigned to and performed by employes of other crafts to employes covered by this agreement. Neither shall the omission of certain work presently performed by employes under the Firemen and Oilers Agreement be construed as a waiver of any right of such employes to such work." Accordingly, the Memorandum Agreement did not expand on the scope of the Agreement dated June 1, 1960; as we have already indicated the four (4) classes set forth in the Memorandum Agreement were created to eliminate and redesignate job titles and to adjust rates of pay to eliminate alleged inequities. To prevail in this dispute, the Organization must demonstrate that the work in question has historically been performed by Laborers. In this connection it should be noted that in its third-party response to the claim, the Carmen have alleged that each job duty claimed by the Laborers is also performed by other crafts, including their own craft. Suffice it to say that there is persuasive evidence that other crafts, including the Carmen have performed the work claimed by the Laborers at the Carrier's facility in Memphis. In the opinion of the Board, the record is simply too equivocal to support the Organization's claim that the Laborers have exclusively performed the work in question at the Carrier's Memphis facility. Furthermore there is no proof that the work claimed by the Laborers is based on system-wide past practice. Since the Organization has failed to show by strong and conclusive evidence that the Laborers are entitled to the work stated in its claim by specific rule language or historically, its claim must be denied. A W A R D Claim denied. Form 1 Award No. 10671 Page 4 Docket No. 10443-T 2-MP-F&0-'85 NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division Attest:~`~C~ - Executive Secretary Dated at Chicago, Illinois, this 4th dad of December 1985.