Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11329
SECOND DIVISION Docket No. 10894-T
2-DM&IR-EW-'87
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(International Brotherhood of Electrical Workers
Parties to Dispute:
(Duluth, Missabe and Iron Range Railway Company
Dispute: Claim of Employes:
1. That the Duluth, Missabe and Iron Range Railway Company (DM&IR)
violated rule 74 of the current Shopcraft Agreement and past practices by
assigning track department employees to provide flagging of train movement on
tracks where signal construction was being performed and assigning the track
department employees to operate the on-track vehicles used for transporting
signal construction electricians and equipment to the construction site.
2. Accordingly, the Duluth, Missabe and Iron Range Railway Company
be ordered to pay electrician Steve Blettner one hundred forty-four (144)
hours' pay at the straight time rate for electricians.
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.
As third party in interest, the Brotherhood of Maintenance of Way
Employes was advised of the pendency of this case, but chose not to file a
submission with the Division.
This Claim arose after an employee, not belonging to-the Electrical
Craft, operated a Hy-Rail vehicle and provided flag protection for an Electrical Crew. The Claimant asserts, relying on Rule 74 of the Parties' Agreement, that the work at issue belonged to the Electricians.
The Carrier does not dispute the Claimant's version of the events;
however, it essentially asserts that the Claim does not have Rule support and
that the work of transporting personnel and flagging is not exclusive to any
craft.
Form 1 Award No. 11329
Page 2 Docket No. 10894-T
2-DM&IR-EW-'87
In this case, the Organization relies on a portion of Rule 74 which
states ". . . and all other work generally recognized as electricians' work."
Clearly then, it must show a past practice which has established that the work
at issue accrued to its craft. Here, it mainly rests its claim upon statements signed by a number of electricians which, for the most part, state that
only Electricians operated Hy-Rail equipment and motor cars in connection with
signal and electrical construction, and that these activities never have been
performed by employees of another craft.
The Carrier, in its Submission and its forceful arguments before the
Board, advances a number of sound arguments. Among others, it has noted that
the burden is upon the Organization to show a systemwide past practice for
this claim to prevail. However, the Board observes that this argument was not
brought forward on the property. Accordingly, the Board will not consider
this first-time contention.
Turning now to those matters properly before us, the evidence shows
that, on the property, the basic past practice contention asserted by the
Organization was not addressed by the Carrier in any manner. Therefore, the
Organization's version of the essence of its Claim is uncon troverted and
unrebutted on the property, although the Carrier had both the time and the
opportunity for rebuttal. It therefore stands as presented.
In view of all the foregoing, Part I of the Claim is sustained. With
respect to Part 2, we follow the general holding that where Claimants are
fully employed and no loss of earnings had been demonstrated, no monetary
damages will be awarded.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 2nd day of September 1987.