Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11604
SECOND DIVISION Docket No. 11478-T
88-2-87-2-133
The Second Division consisted of the regular members and in
addition Referee Raymond E. McAlpin when award was rendered.
(International Brotherhood of Firemen and Oilers
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
(Eastern Lines)
STATEMENT OF CLAIM:
1. In violation of Rule 1 of the controlling agreement, Mr. M. J.
Livings was furloughed at the end of shift on January 23, 1987.
2. That other than members of the Firemen and Oilers (Carmen and
Supervisors) have been assigned to and have performed the duties that were
rightfully and previously performed by M. J. Livings.
3. That Laborer M. J. Livings should immediately be returned to
active service from his laid off status and he be compensated for this continuing violation of the agreement by payment of eight (8) hours per day at
his regular rate of pay, forty (40) hours per week from January 23, 1987 until
the work in question is once again returned to and properly assigned to the
Firemen and Oilers.
4. The Carrier will reinstate, retroactively, Mr. Livings' entire
health and welfare plan, seniority, and vacation benefits as provided in the
current agreement.
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.
The Organization claimed violation of Rule 1 of the Agreement when
the Carrier assigned work previously performed by the Claimant to other crafts
at its East St. Louis facility. This Rule is reproduced below:
Form 1
Page 2
Award No. 11604
Docket No. 11478-T
88-2-87-2-133
"Rule 1: Scope
This Agreement shall govern the rates of pay and
working conditions of the classes of employees
shown below working in and about shops, power
plants, train yards and engine terminals in the
Motive Power and Equipment Department and does not
apply to employees of other departments or others
performing similar work not under the jurisdiction
of the Motive Power and Equipment Department.
A. Stationary Engineers
Stationary Firemen
Power Plant Oilers
Stationary Engineers
Stationary Firemen
Wood Preserving Works, Houston
(Maintenance of Way Department)
B. Locomotive Crane Operators
Lye Vat Attendants
Acetylene Generator Attendants
Oil Pumpers
Engine Watchmen
Sandhouse Men
Transfer and Turntable Operators
Lubricator Fillers
Tool Checkers
Engine Washers
Engine Wipers
Locomotive Supplymen
Inside Hostler Attendants
Motor Truck & Tractor Operators
Power Plant, Roundhouse, Shop and Car
Department Laborers
Gang Leaders (Laborers)
The classifications set forth above are not to be
construed as intended to preclude combining any of
these classes of work on one assignment; in other
words, listing all these classes is not intended to
mean that the Company is required to have a man or
men assigned to each, nor does it prevent one man
doing any number of them in one tour of duty.
It is understood and agreed that positions listed
above, now under the Motive Power and Equipment
Department, will not be transferred from the juris-
Form 1 Award No. 11604
Page 3 Docket No. 11478-T
88-2-87-2-133
diction of the Motive Power and Equipment Depart
ment except by agreement between the parties
signatory to this agreement."
The Carrier furloughed the Claimant at its Lake Charles, Louisiana
facility. The Organization claimed there was enough work available at this
facility to justify the employment of the Claimant as a full-time laborer,
and, as such, the work contractually belongs to the Claimant. The Organization argued that by agreement and practice the work belonged to the Claimant.
The Organization asked that the Claimant be returned to duty with all rights
and benefits intact.
The Board notes that the Carmen were notified of the pendency of this
dispute, and chose not to intervene.
The Carrier contended that not enough work is available to justify
the employment of a full-time laborer. This was due to a decline in business,
which is economically justified. The Carrier further noted the Scope Rule is
general in nature and the work in question is not performed on a systemwide
basis and cites a number of Awards of this Division. In addition, the Carrier
cited procedural arguments in that the claim was not handled properly on the
property.
The Board finds the procedural arguments raised by the Carrier not
to be persuasive under the circumstances of this case. With respect to the
merits, the Board finds the Scope Rule to be of general nature and does not
clearly and exclusively assign the work in question to members of the Organization. Likewise, the Organization has failed to bring forth sufficient
evidence that it has historically performed this work exclusively and on a
systemwide basis (See Second Division Awards 9949 and 11151). Therefore, the
claim will be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J.,Heve Executive Secretary
Dated at Chicago, I1 inois this 30th day of November 1988.