Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11385
SECOND DIVISION Docket No. 10982-T
2-CR-EW-'87
The Second Division consisted of the regular members and in
addition Referee T. Page Sharp when award was rendered.
(International Brotherhood of Electrical Workers
Parties to Dispute:
(Consolidated Rail Corporation
Dispute: Claim of Disputes:
1. That under the current Agreement, especially Rules I., II.,
5-F-1., the Consolidated Rail Corporation improperly assigns others, including
Carmen to perform the following work, which is Electricians' work.
(a) Inspect the storage batteries of cabooses, their
wiring, place batteries on charge by making the necessary
electrical connections to them and operating the charges.
To remove and/or replace batteries as necessary making
any and all electrical connections required.
(b) Inspect electrical lighting system of cabooses, including lights, wiring, switches, repairs, replace lights.
(c) Inspect caboose electric alternators, their mountings, their belts, replace belts, adjust tension, other service.
(d) Maintain records, work reports, sign for, all the
aforementioned work.
(e) Particularly, the Consolidated Rail Corporation improperly assigned Carmen to perform the work mentioned in
(a), and (b) and (c) above, as follows:
01-06-83 - 11:00 PM to 07:00 AM
Cabooses 21287
21049
21312
01-07-83 - 11:00 PM to 07:00 AM
Cabooses 23019
21072
21552
23375
Form 1 Award No. 11385
Page 2 Docket No. 10982-T
2-CR-EW-'87
01-08-83 - 11:00 PM to 07:00 AM ,~,r
Cabooses 21072
23110
21646
01-10-83 - 11:00 PM to 07:00 AM
Cabooses 21159
01-11-83 - 11:00 PM to 07:00 AM
Cabooses 24001
24502
24044
23148
01-13-83 - 11:00 PM to 07:00 AM
Cabooses 22930
01-14-83 - 11:00 PM to 07:00 AM
Cabooses 23578
21048
21715
01-18-83 - 11:00 PM to 07:00 AM
Cabooses 23043
23010
23648
01-19-83 - 11:00 PM to 07:00 AM
Cabooses 24040
21548 (Charged in yard)
01-21-83 - 11:00 PM to 07:00 AM
Cabooses 23200
21779
21619
21038
24535
22909
23800
Form 1 Award No. 11385
Page 3 Docket No. 10982-T
2-CR-EW-187
01-22-83 - 11:00 PM to 07:00 AM
Cabooses 22894
23087
22884
24040
23240
01-22-83 - 11:00 PM to 07:00 AM
Cabooses 21784
2. That accordingly the Consolidated Rail Corporation should be
ordered to compensate Caboose Track Electricians Mario Ciprioni, Gerald Dare
and Don Van Hoesen, an additional amount computed by multiplying the number of
man-hours it pays others to perform the aforementioned work by time and onehalf the applicable electricians' rate of the Claimants, each day it assigns
the aforementioned work to others, beginning 60 calendar days before the date
of this letter (claim), and continuously thereafter, including the aforelisted
dates, as long as the Carrier assigns the aforementioned work to others; said
total to be divided equally among them, in order to make them whole.
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 Railway Carmen of the
United States and Canada and the Transport Workers Union of America were
advised of the pendency of this case. The Brotherhood Railway Carmen chose to
file a Submission with the Division, the Transport Workers Union chose not to
file a Submission with the Division.
Claims were submitted by the Organization alleging that work accruing
exclusively to its craft had been performed by members of the Carmen craft.
The three claimants were track Electricians. One of these worked 7:00 AM -
3:00 AM, rest days of Saturday and Sunday; another 3:00 PM - 11:00 PM, rest
days of Thursday and Friday; and the third worked relief for these two positions with relief day on Wednesday. As can be seen by the assignments there
Form 1 Award No. 11385
Page 4 Docket No. 10982-T
2-CR-EW-'87
are periods of time at the Selkirk facility in which there are no Electricians
on duty.
The Carrier contends that Carmen performed certain work "such as repairing marker lights battery connections and changing batteries, on cabin
cars." It denies that the Carmen perform any work exclusively reserved to
Electricians in the Organization's Schedule Agreement.
Although the Scope Agreement lists many specific tasks that are exclusively reserved to the Electrical craft, the Organization has not shown to
this Board any provision whereby the type of work claimed is exclusively
reserved. The Organization submitted many resolved claims which they state
shows that the practice in the past has been to assign this work to the Electrical Craft.
The Carrier contends that Classification of Work Rules from the Carmen's and the Organization's Agreements control. These Rules state:
Electrician
"Except as otherwise determined by a joint
jurisdiction committee, it is further understood and agreed in the application of this
Electricians' Classification of work that any
work specified herein which is being performed
on the property of any former component railroad by employees other than Electricians may
continue to be performed by such other employees
at the locations at which such work was performed by past practice or agreement on the effective
date of this agreement; and it is also understood
that work not included within this Electrician's
Classification of Work which is being performed
on the property of any former component railroad
by Electricians will not be removed from such Electricians at the locations at which such work was
performed by past practice or agreement on the effective date of this Agreement."
Carmen
"Except as otherwise determined by a joint jurisdicition committee, it is further understood and
agreed in the application of this Carmen's Classification of Work that any work specified herein which
is being performed on the property of any former component railroad by employees other than Carmen may
continue to be performed by such other employees at
the locations at which such work was performed by past
practice or agreement on the effective date of this
Agreement; and it is also understood that work not included within this Carmen's Classification of Work
Form 1 Award No. 11385
Page 5 Docket No. 10982-T
2-CR-EW-187
which is being performed on the property of any former
component railroad by Carmen will not be removed from
such Carmen at they locations at which such work was
performed by past practice or agreement on the effec
tive date of this Agreement."
As can be seen by comparison of the two classification Rules, they
are identical except for the name of the crafts. The assertion is made that
the Carmen had historically performed this work, along with Electricians,
therefore there is no Rule violation.
The Carrier answered the issue of the submitted Claims by addressing
each of these and pointing out that only two of these Claims concern cabooses.
Two Claims over a multi-year period will not suffice to show the degree of
past practice necessary to establish exclusivity.
The Organization would have the Board place the burden of proof on
the Carrier who is in control of the necessary elements, if there are any, to
develop the facts. However, the burden is on the Claimants to create a prima
facie case. When making a serious Claim as work jurisdiction this initial
burden cannot rightfully be placed on the Carrier.
As can be seen in part one of the Claim, caboose numbers are stated
for a series of days and the Beard must infer that by implication violations
of paragraphs (a) through (e) .are alleged to have occurred on each of the
cabooses on each of the stated days. Generalities of this sort do not frame
the Claim in a manner specific enough to permit the kind of analysis necessary
for decision.
The Claim must be specific enough to allow the Carrier to know what
is properly alleged so that it can respond with a defense if one exists. A
Claimant cannot allege broad violations of the Agreement and expect the Carrier in its answer to develop the Claimant's case. The Claim herein does not
meet this degree of specificity. Because of this the Board will dismiss the
Claim.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy ever - Executive Secretary
Dated at Chicago, Illinois this 18th day of November 1987.
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