Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10925
SECOND DIVISION Docket No. 10608-T
2-SP-SMW-'86
The Second Division consisted of the regular members and in
addition Referee Jonathan Klein when award was rendered.
(Sheet Metal Workers International Association
Parties to Dispute:
(Southern Pacific Transportation Company (Western Lines)
Dispute: Claim of Employes:
1. That the Carrier violated Sheet Metal Workers Classification of
Work Rule 77 of the current Motive Power and Car Department Agreement on March
2, 1983.
2. That the Carrier compensate claimant W. Snider for two (2) hours
pay at straight time rate plus interest at the rate of 10% per annum.
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.
This Claim involves the ever present issue of an alleged breach of
the classification of Work Rules. It is undisputed that on March 2, 1983, a
Machinist, utilizing an oxy-acteylene cutting torch, was assigned by Carrier
the job of cutting an 8 inch diameter seamless pipe, 10 feet long, into pieces
12 inches in length. The cut pipe was then placed in a lathe to mill, and
ultimately the pipe was welded into a fuel filter housing as part of repairs
on a diesel locomotive. The entire time involved in cutting the seamless pipe
was approximately two hours. The Machinists Organization declined to file a
Submission, but expressly declined to disclaim the right to the work in
dispute.
As a preliminary matter, the Carrier has timely raised a jurisdictional issue which we must address prior to resolution of the instant dispute.
The Carrier posits that the Claim involved a third party who has an interest
in the disputed work, and, therefore, the issue herein presented involves a
jurisdicitonal work dispute, the resolution of which the parties have agreed
to submit to conference and negotiation procedures on the property.
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The Memorandum, commonly referred to as Memorandum "A," was executed
April 17, 1942, and incorporated into the current Agreement. The Memorandum
states in pertinent part:
"In connection with and supplementary to the Motive
Power and Car Departments Agreement which became
effective April 16, 1942, it is recognized by the
employes represented by System Federation No. 114,
through their several General Chairmen and the
Southern Pacific Company (Pacific Lines), that in
and by said agreement, numerous changes have been
made in the 'Classification of Work' and other
Rules under which men have heretofore been working,
and a great deal of detail and description of the
work has been eliminated, which may result in one
craft or class requesting or contending for work
that is being performed by another craft or class.
In recognition of the facts above recited, and in
order to avoid confusion at the local points and
provide an orderly determination of the items of
work not specifically stated in the 'Classification
of Work' and other Rules of the several crafts, it
is agreed that existing practices will be con
tinued, unless and until otherwise decided by con
ference and negotiation between the General Chair- rrlr'
men involved, and the General Superintendent of
Motive Power, for purpose of uniformally applying
such decision wherever necessary on the railroad."
(Emphasis supplied).
The Board does not concur with Carrier's conclusion that this dispute
involved an inter-craft dispute requiring on the property negotiation. In
Second Division Award No. 8283 cited by Carrier, the work at issue was held to
be new or experimental work which had never previously been performed, and
each craft claimed the exclusive right to perform the disputed work under its
respective Work Classification Rules. Further, each craft filed Submissions
in connection with the Claim highlighting even more intensely the jurisdictional dispute between the crafts over the work in question. Similarly, in
Second Division Award No. 7218, the Machinist's craft filed a Submission in
response to the Carmen's Claim of the right to operate a new piece of
equipment used in the repair and maintenance of freight cars. The Machinists
claimed the exclusive right to operate the "precision" equipment and, therefore, the right to perform the work. The Carmen asserted their right to
operate the machine based upon past practice on the property involving such
work. Second Division Award No. 7481 merely referenced Award No. 7218 in
dismissing the Claim on jurisdictional grounds, and in Award No. 7491, both
Form 1 Award No. 10925
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2-SP-SMW-'86
Organizations involved provided Ex Parte Submissions. The Board finds the
letter in this dispute from the Machinists Craft to the Executive Secretary
declining to respond, while not a disclaimer of the work in dispute, to be
insufficient in our opinion to create an inter-craft dispute, subject to the
conference and negotiation requirements of Memorandum "A".
Turning to the merits of the Claim, the Organization cites the classification of Work Rule 77, which provides in pertinent part:
"Sheet metal workers' work shall consist of tinning, coppersmithing and pipefitting in shops,
yards and buildings (except work performed by
Maintenance of Way Department employes) and on
passenger train cars and engines of all kinds; ***
the bending, fitting, cutting, threading, brazing,
connecting and disconnecting of air, water, gas,
oil and steam pipers; *** oxy-acetylene, thermit
and electric welding on work generally recognized
as sheet metal workers' work, and all other work
generally recognized as sheet metal workers' work."
(Emphasis supplied)
The Board finds that the language of Rule 77 is, with respect to the
act of cutting pipe, plain and unambiguous. Carrier's contention that it was
past practice for this work to be performed by the Machinists craft was unsubstantiated by evidence capable of refuting the clear and unambiguous language
of the Rule. Inasmuch as this dispute involves the Machinists, and not Maintenance of Way Employes who fall within the Rule 77's express exception to its
coverage, the Board's decision in Second Division Award No. 5947 is easily
distinguishable.
The cases cited by Carrier for the proposition that a demonstration
of an exclusive, system-wide past practice must be made by the craft claiming
the work, do not contain the detailed Work Rule language comparable to that at
issue in this case. See Second Division Awards No. 10091, 10076, 7020. The
concept of system-wide exclusivity simply has no application to the particulars of this case where the Rule's language as applied to these facts is clear
and unambiguous. Moreover, no contention has been made that the work performed by the Machinist was merely incidental in nature.
That Mechanics of both crafts use oxy-acetylene torches in accordance
with their respective classification of Work Rules does not cause, ipso facto,
the boundaries of the two crafts to merge. This is particularly so where the
only evidence suggests that the work in question has long been assigned to the
craft challenging the assignment. In this case the evidence consists of the
unrefuted statements of three Sheet Metal Workers, combined with the plain and
unambiguous wording of the Rule itself as applied to the disputed work. There
being no support, contractual or otherwise, which entitles the Organization to
an award of interest, that portion of the Claim is hereby denied.
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A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest.
Nancy Jr - Executive Secretary
Dated at Chicago, Illinois, this 16th day of July 1986.