Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11902
SECOND DIVISION Docket No. 11452-T
90-2-87-2-135
The Second Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(Brotherhood Railway Carmen/ A Division of TCU
PARTIES TO DISPUTE:
(Duluth, Missabe & Iron Range Railway Company
STATEMENT OF CLAIM:
1. That the Duluth, Missabe, and Iron Range Railroad Company violated
the terms of our current Agreement, particularly Rules 29 and 57.
2. That accordingly, the Duluth, Missabe, and Iron Range Railroad
Company be ordered to compensate Carman D. J. Wayt in the amount of four (4)
hours at the time and one-half (1.5) rate for September 3, 1986 account of
supervisors assigned to perform work outside the scope of normal supervisors's
duties.
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 Parties in Interest, the Brotherhood of Maintenance of Way
Employes and Transportation Communications Union were advised of the pendency
of this dispute. The Brotherhood of Maintenance of Way Employes filed a Submission with the Division. Transportation Communications Union did not file a
Submission with the Division.
This Claim concerns Carrier Supervisors performing work connected
with dumping taconite tailings from air-operated dump cars. During the timeframe of this Claim, Carrier was hauling taconite waste to a location at which
it did not have employees on duty. During the day, dumping was accomplished
by Track Department employees represented by the BMWE. During the afternoon
shift, dumping was accomplished by Carmen. This arrangement did not generate
objections by either Track Department employees or Carmen.
Form 1 Award No. 11902
Page 2 Docket No. 11452-T
90-2-87-2-135
On September 3, 1986, a Supervisor performed the dumping operation,
which resulted in the instant Claim.
Carrier's principle defense is that the work connected with this dumping operation was shared work and as such, Carmen do not have an exclusive
right to the work. Additionally, Carrier contends that the Carmen's Classification of Work Rule does not specifically include work of dumping cars; accordingly, it cannot be considered as Carmen's work. Moreover, the Agreement permits the performance of work by Foremen at locations where Carmen are not employed.
The issue under review here and the arguments advanced by the parties
are quite similar to those dealt with in Third Division Award 25991. There
the Board stated:
"It is necessary to keep in mind precisely what is
at issue. This is not a case in which work has been
assigned to employees of one craft, classification or
Organization as opposed to employees of another craft,
classification or Organization nor is it a case in which
work has been subcontracted to employees of an employer
other than the Carrier. Rather we have a situation in
which supervisory personnel of the Carrier performed
work claimed by the Organization to be work reserved to
its members by the Agreement. In this situation we find
applicable Third Division Award 15461 which held:
'The applicable Scope Rule in the instant dispute
is general in nature, and would not afford an exclusive claim on behalf of clerks to ticket selling
duties and related clerical work if the question
before us involved the performance of such work by
telegraphers or other employees subject to labor
agreements. However, Carrier here assigned such
routine clerical work which is normally performed
by employees subject to the Clerks Agreement to
supervisory employees, who are not covered by any
collective bargaining agreement...'"
In accordance with the above the Claim will be sustained, but at
straight time rate.
A W A R D
Claim sustained in accordance with the Findings.
Form 1 - Award No. 11902
Page 3 Docket No. 11452-T
90-2-87-2-135
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ancy .X6ver - Executive Secretary
Dated at Chicago, Illinois, this 1st day of August 1990.
I
CARRIER MEMBERS' DISSENT
TO
AWARD 11902, DOCKET 11452-T
(Referee Fletcher)
The Majority concluded that the issue and arguments advanced
by the parties in the instant dispute were quite similar to those
dealt with in Third Division Award 25991 and quoted extensively
therefrom.
For the record, it is noted that the Brotherhood of
Maintenance of Way Employes furnished that Award as part of its
Third Party Response. Unfortunately, our Dissent to that Award
was not furnished. Our Dissent thereto reads as follows:
"The Majority Opinion does not find that the Scope
Rule reserves the work in dispute to the Claimants or
that the work was reserved to Claimants by virtue of
exclusive systemwide practice. Under consistent and
long-standing precedent of this Board, the Organization
having failed to carry its burden of proof, the claim
should have been denied. Third Division Awards:
24853, 24739, 21586, 20018, to cite just a few.
The Claim was nevertheless sustained, not because
Claimants did not perform the work but, rather, because
supervisory personnel of the Carrier did. Thus, the
Majority concludes that if the work had been performed
by employees in another craft subject to a collective
bargaining agreement it would have denied the claim.
Such conclusion is not supported by reason or law.
Nothing in the controlling Agreement or in the Railway
Labor Act supports a conclusion that there is a variety
of work which can be performed only by employees
covered by labor agreements in the absence of such a
limiting provision in the Agreement. There is no such
limiting Scope Rule provision in the Agreement in this
case, a fact which is recognized by the Majority.
The Award is clearly erroneous and we Dissent."
For the same reasons Award 25991 was "clearly erroneous,"
Award 11902 is clearly erroneous and we dissent.
Dissent to Award 11902 Page 2
M. C. LESNIK M. W. FI GERH
U
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A/I
R. L. HICKS P. V. VARGA
. E. YOST
August 2, 1990