Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11925
SECOND DIVISION Docket No. 11637-T
90-2-88-2-125
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
(Sheet Metal Workers International Association
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM:
1. The Carrier violated the provisions of the current controlling
agreement, Rule 71 in particular, when they improperly assigned other than a
Sheet Metal Worker to clean and repair sanders on Burlington Northern Locomotive 5371, in consist for Train 84RR026, located in the East Yards, Number 2
Track, at Alliance, Nebraska on July 14, 1987.
2. That accordingly, the Carrier be required to compensate Sheet
Metal Worker D. O'Connor in the amount of eight (8) hours pay at the rate of
time and one-half the prevailing rate of pay for the above-stated date.
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.
In this dispute, the Organization contends that Carrier violated the
Classification of Work Rule (Rule 71) when a machinist assertedly cleaned the
sanding units on Burlington Northern Locomotive 5371 on July 14, 1987. Said
Rule reads as follows:
"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, erec
ting, assembling, installing, dismantling and
Form 1
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Award No. 11925
Docket No. 11637-T
90-3-88-2-125
maintaining parts made of sheet copper, brass,
tin, zinc, white metal, lead, black, planished,
pickled and galvanized iron of 10 gauge and
lighter, including brazing, soldering, tinning,
leading, and babbitting, the bending, fitting,
cutting, threading, brazing, connecting and
disconnecting of air, water, gas, oil, sand and
steampipes; the operation of babbit fires;
oxyacetylene, thermit and electric welding on
work generally recognized as sheet metal
workers' work, and all other work generally
recognized as sheet metal workers' work."
Specifically, the Organization maintains that the connecting and disconnecting
of sand pipes is indisputably Agreement specified protected work and thus all
pipe work involving the cleaning of sanders is reserved exclusively to Sheet
Metal Workers. It pointed out that the cleaning of sanders was not akin to
the simple task of cleaning an automobile or the scrubbing of a sink, but
rather necessitated the utilization of technical skills. As an illustration,
it observed that in order to reach the location where the sand trap unit
developed an obstruction, the pipefitter (Sheet Metal Worker) was required to
remove the sand pipe from the sand outlet side of the trap and dislodge the
residual harden dust sand particles. It submitted a copy of Carrier's maintenance instructions for the cleaning and maintenance of locomotive sanding
systems and a 1946 Jurisdictional Agreement involving the allocation of specialized work tasks on the former Chicago, Burlington and Quincy Railroad. In
part, that Agreement stated:
"All pipe work in connection with any of the
above parts of the locomotive and the cleaning
of sanders, as well as the right to test all air
brake pipes for leaks in order to determine that
repairs are properly made is sheet metal workers' work."
It also cited Award 3 of Public Law Board No. 3501 and Second Division Awards
8152 and 7368 as further support for its position. The Machinist Organization
as a prospective party in interest did not file an ex parte rebuttal submission, but submitted a letter to the Division on December 23, 1988, wherein it
indicated that it had no response to the dispute, but noted that its position
was not a disclaimer of the work in dispute.
The Carrier argues that the work did not involve the cleaning or
repairing of sand traps or sand pipes but rather was a minor function incidental to the primary duties of a machinist. It asserted that the unplugging
of the sanders on the claim date merely involved the use of a hammer or wrench
to tap the sanding mechanism or the insertion of a wire or screwdriver into
the pipe to remove sand accumulation. Furthermore, it contended that the
Organization had not established that any pipes were removed or that it was
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Award No. 11925
Docket No. 11637-T
90-3-88-2-125
necessary to first remove a pipe before inserting a wire to unplug the sand.
It maintained that the work was of a minor and incidental nature and did not
require the skills ordinarily used in repairing sanders. It cited Second
Division Award 4219 involving the Elgin, Joliet and Eastern Railway Company
and the Sheet Metal Workers Union as controlling authority. In pertinent part
this Award held:
'...
that while they instant dispute was being
progressed on the property the organization
claimed repeatedly that 'CLEANING' sandpipes was
exclusively pipefit.ter's work. To this the carrier could not and did not agree for it knew
full well that throughout its system sandpipe
cleaning properly has been performed by engineers, firemen, machinist inspectors and machinists in and around roundhouse facilities, in the
yards, and on line of road for many many years
without any objection from the organization or
the employees it represents - or anyone else.
The carrier knew, too, that cleaning a sandpipe
might require only the slightest tap with a
hammer or monkey wrench (standard equipment on
locomotives and used traditionally by enginemen
when faced with a sluggish sandpipe) to get the
sandpipe running smoothly again. The carrier
was also aware that a short length of wire run
smartly into a sandpipe filled with damp sand,
by an engineer, fireman, machinist, etc., will
usually clean the situation up in a very short
time. Occasionally, in wet freezing weather, a
lighted fusee or flaming wiping cloth strategically placed by an engineer or fireman will
clean out that ice or frost and allow sand to
flow freely. No, the carrier couldn't agree
that clearing sandpipes was exclusively pipefitters' work simply because too many other
crafts or classes of employees on this property
have historically and traditionally considered
this an incidental and integral part of their
normal duties and have performed it without
requirement, without question, without objection
and without delay. For this reason the carrier
declined the organization's claim for 'CLEANING'
sandpipes - and rightfully so.
It is obvious that there must be considerable
cleaning of sand pipes at the Carrier's four
facilities mentioned above; and it is equally
obvious that the cleaning of sand pipes is
being done by other than Pipefitters at these
facilities. How then can it be claimed that
this work is reserved solely to Pipefitters?"
Form 1 Award No. 11925
Page 4 Docket No. 11637-T
90-3-88-2-125
In considering this case, the Board concurs with Carrier's position.
The Claim filed by the Organization on August 19, 1987, charged that Carrier
assigned a machinist to repair the sanding system on BN Locomotive 5371 on
July 14, 1987, but no detail confirmatory information was actually provided as
to the actual work performed. If the work performed involved merely the tapping of the pipe or the insertion of a wire to dislodge the accumulated sand,
then said work under the precedent authority of Second Division Award 4219
would be momentarily incidental to the primary work of the machinist.
On the other hand, if the work involved more than mere tapping or the
insertion of a probe and reflected the cleaning of sanders then said work belongs to the Sheet Metal Craft. Admittedly, this is a fine distinction and
requires under varying disputable circumstances a painstaking analysis of
events, but in reality it comports with the authorities cited by both parties.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
I
lop-
Attest:
eg
Nancy J. ~- Executive Secretary
Dated at Chicago, Illinois, this 22nd day of August 1990.
LABOR MEMBERS' _DISSENT
TO
AWARD 11925, DOCKET 11637-T
The findings of the majority of the Board in this dispute
are most grievously in error. The findings have not only rejected
the accepted past practice on the property, but in addition have
totally ignored and forever damaged the intent and application of
the literal contractual language contained in the Organization's
Classification of Work Rule.
The dispute involved the cleaning of locomotive sanding
systems in the Maintenance of Equipment Department by other than
employees represented by the Sheet Metal Workers' International
Association.
While refusing to properly sustain the claim, the Honorable
Referee states:
If the work performed involved merely the tapping of the pipes or the insertion of a wire to
dislodge the accumulated sand, then said work
under the precedent authority of Second Division Award 4219 would be momentarily incidental to the primary work of the machinist.
Emphasis added)
In review of the above-referenced Award, two (2) specific
oversights committed by the neutral require further discussion.
Initially, it is set forth that Award 4219 was rendered effective June 14, 1963. The acceptance of this Award as precedent
entirely disregards the provisions of Article 5, Incidental Work
Rule, of this Organization's Agreement of May 12, 1972 which
Labor Member's Dissent Cont.
Page 2
provides for the performance of incidental work on this Carrier's
property. The utilization of employees not represented by this
organization to perform work guaranteed to its members through
past practice and literal contractual language may be accomplished
only under provisions mandated in Article 5. The Referee's acceptance of Award 4219 as being precedent are unfounded and
rendered moot by the subsequent May 12, 1972 Agreement.
Furthermore, the Carrier did not rely on the provisions of
Article 5 in denying the instant dispute. Instead, they chose to
transfer the disputed work away from the organization by clouding
the tasks required in the actual cleaning of sanding systems.
Secondly, Award 4219 makes reference to the practice of
various carrier employees at various points as performing the work
involved in that dispute on a regular basis. As set forth in the
instant dispute, all shops on the Carrier's predecessor system assigned sheet metal workers to perform the work in question.
(Employee's submission, Exhibit "F", Pages 13 through 17) This
fact combined with the jurisdictional agreement of November 19,
1946, Docket 262, Award 262 (Employee's submission Exhibit "F",
Page 12) unequivocally grants the disputed work to the members of
this Organization.
The majority's refusal to accept the facts set forth by the
Organization regarding prior systemwide practice and the exclusive
contractual language contained in the agreement provisions renders
Labor Member's Dissent Cont.
Page 3
this Award erroneous and
accordingly, does not set precedent.
Most vigorously dissent to Award 11925 and the findings contained
therein.
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