Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11246
SECOND DIVISION Docket No. 10214-T
2-AT&SF-SMW-'87
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
(Sheet Metal Workers' International Association
Parties to Dispute:
(The Atchison, Topeka and Santa Fe Railway Company
Dispute: Claim of Employes:
1) That the Atchison, Topeka and Santa Fe Railway Company violated
the controlling agreement, particularly Rule 82 when they assigned B&B
employes the task of assembling lockers at Hobart Yard, Engineer's locker
room, on June 3, 4, 5 and 8, 1981, Los Angeles, California.
2) That accordingly, the Atchison, Topeka and Santa Fe Railway
Company be ordered to compensate Sheet Metal Worker Joe Martinez in the amount
of four (4) days, eight hours (8') per day, June 3-4-5-8, 1981, account B&B
Department employes performing his work.
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.
On June 3, 4, 5 and 8, 1981 (according to organization's version of
the facts in the instant case) or June 12, 15 and 17, 1981 (according to
Carrier's version of the facts), five (5) B&B Department employees, who are
members of the Brotherhood of Maintenance of Way Employes, assembled sheet
metal lockers for use by engineers in the Engineers' and Trainman's Locker
Room at Carrier's Hobart Yard, Los Angeles, California. Said task, according
to Organization, encompassed thirty-two (32) hours. Carrier asserts, however,
that forty (40) lockers were assembled in thirty-one (31) hours.
On July 7, 1981, Organization filed a Claim alleging that the foregoing assignment was a violation of Rule 82 of the parties' controlling Agreement and further alleging that the disputed work rightfully belonged to Claimant who was a "Grand Division Sheet Metal Worker."
Form 1
Page 2
follows:
Award No. 11246
Docket No. 10214-T
2-AT&SF-SMW-'87
Rule 82 of the controlling Agreement, in pertinent part, provides as
"Sheet Metal Workers' work shall consist of
tinning, coppersmithing and pipefitting in
shops, yards, buildings and on passenger coaches
and engines of all kinds; the building, erecting, assembling, installing, dismantling for
repairs and maintaining parts made of sheet
copper, brass, tin, zinc, white metal, lead,
black, planished, pickled and galvanized iron of
10 gauge and lighter, including---all other work
recognized as sheet metal workers work."
According to the Rules of the National Railroad Adjustment Board,
because of the nature of the dispute, the Brotherhood of Maintenance of Way
Employes, a Third Party herein, was notified of the pendancy of the dispute.
However, the Maintenance of Way Employes declined to intervene.
Organization's basic position in this controversy is that Sheet Metal
Workers have historically assembled lockers on this property. Additionally,
Organization cites a litany of Second Division Awards which, according to
Organization, recognizes its members' right to perform the type of work which
is contested in the instant dispute. Specifically, organization cites Second
Division Award No. 8004 which allegedly limits the exclusivity of work doctrine to a particular point rather than systemwide exclusivity. As further
evidence of the Sheet Metal Workers' exclusive right to perform the work in
dispute herein, organization proffers an affidavit signed by various of its
members at Hobart Yard who indicate that they have previously performed this
very same work on this very same property.
Carrier challenges Organization's Claim on numerous fronts.
First, Carrier argues that the Preamble to the parties' controlling
Agreement limits the jurisdiction of the Sheet Metal Workers' Classification
of Work Rule to the Maintenance of Equipment Department and the Engineering
Department under the direction of the Operating Department. Furthermore,
according to the Carrier, said Preamble, does not specifically enumerate work
of the nature involved herein as being the exclusive jurisdiction of employes
within Claimant's job classification. Further on this same point, Carrier
contends that this Board, in Second Division Award No. 2695, has previously
denied a smaller claim between these same parties. Said Award, according to
Carrier, is res judicata and clearly establishes that the disputed work
"...
does not contractually belong to Sheet Metal Workers."
Regarding organization's reliance upon Second Division Award No.
8004, allegedly establishing the point exclusivity doctrine, Carrier argues
that said Award must be viewed as an aberration in light of the many other
Second Division Awards which support systemwide exclusivity. According to
Carrier, since organization is the moving party in the instant dispute, and,
Form 1
Page 3
Award No. 11246
Docket No. 10214-T
2-AT&SF-SMW-'87
therefore, must prove systemwide exclusivity, Carrier proffers its own survey
which allegedly demonstrates that many other employes of many other crafts
have assembled sheet metal lockers at many other points throughout Carrier's
system. Therefore, Carrier distinguishes organization's contention of the
precedential value of Award No. 8004, which purportedly recognizes the Sheet
Metal Workers' right to assemble Mechanical Department lockers, by arguing
that the lockers involved in this dispute, unlike those involved in the cited
Award, are used by employes of the Operating Department.
Lastly, Carrier contends that the instant dispute contains a factual
discrepancy concerning the dates and number of hours involved in the alleged
violation; and also that, throughout the time period involved in the Claim,
Claimant was gainfully employed on the Claim dates, and, consequently,
suffered no economic harm. For these latter reasons alone, Carrier argues
that the instant Claim should be dismissed as being procedurally defective.
The Board has carefully read, studied and considered the complete
record in this case, and concludes that we cannot resolve the factual discrepancies which have been adduced by Carrier in its argumentation. When
confronted on the property with the factual differences regarding both the
dates and the duration of the alleged infractions, organization apparently
failed to clarify whether the alleged violation occurred on June 3, 4, 5, and
8, 1981, for thirty-two (32) hours; or on June 12, 15 and 17 for thirty-one
(31) hours. As a consequence, this Board is faced with the dilemma that even
if we would find for organization's position in this dispute, we, nonetheless,
would be unable to fashion a precise remedy. Therefore, since this Board had
consistently declined to resolve factual differences left unresolved on the
property, the instant Claim must be disposed of in a similar manner.
A W A R D
Claim denied.
At test:_<Z,
Nancy er - Executive Secretary
Dated at Chicago, Illinois, this 22nd day of April 1987.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division