Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12046
SECOND DIVISION Docket No. 11644-T
91-2-88-2-138
The Second Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
1. That the Union Pacific Railroad Company violated the controlling
agreement, particularly Rules 32 and 122, when Foreman W. N. Wakefield, Jr.
arbitrarily performed electricians' work i.e., to cut, make up consists,
directional test, load test, dynamic brake test and make departure test on
sixteen (16) locomotives on July 5, 1987, Green River Diesel Shop, Green
River, Wyoming.
2. That accordingly, the Union Pacific Railroad Company be ordered to
compensate Electrician Doug Hall in the amount of eight hours (8') at pro rata
rate for July 5, 1987, as he was available to perform this work had he been
assigned.
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 American Railway and Airway Supervisors Association was advised of the pendency of this dispute but chose not
to file a Submission with the Division.
This case involves an electrician's claim to certain work allegedly
performed by a foreman. The Claimant was employed as an electrician at the
Carrier's Green River Diesel Shop in Green River, Wyoming, at the time this
dispute arose. On August 4, 1987, the Organization filed a Claim on behalf of
the Claimant for eight hours' pay because the Carrier allegedly had permitted
a foreman to perform the following work,
Form 1 Award No. 12046
Page 2 Docket No. 11644-T
91-2-88-2-138
"cut, make up consists, directional test, load test, lose
dynamic brake test and make departure test on loco
motives."
The Organization contends that this is work which is reserved to electricians
and may not be performed by foremen or employees in other crafts. The Carrier
contends that electricians have no exclusive right to this work and therefore
denied the Claim.
The Organization has filed its Claim in part under Rule 32, which
states in relevant part,
"Rule 32. Assignment of Work
None but mechanics or apprentices regularly employed
as such shall do mechanics' work as per special rules
of each craft, except foremen at points where no
mechanics are employed.
At points where mechanics are employed, foremen may
give instructions in the normal performance of their
duties."
The Carrier does not argue that this was a point where no journeymen electricians were employed. Nor has there been an allegation that the work in question was instructional. Rather, the Carrier contends that the work was not
reserved exclusively to electricians.
In support of its position, each Party relies upon Rule 122 of the
applicable Agreement, which states,
"Rule 122. Classification of Electricians
Electricians' work shall include electrical wiring,
maintaining, repairing, rebuilding, inspecting and
installing of all generators, electric headlights
and headlight generators, electric welding machines,
storage batteries (work to be divided between electricians and helpers as may be agreed upon), axle
lighting equipment, all inside telegraph and telephone equipment, electric clocks and electric
lighting fixtures, winding armatures, fields, magnet
coils, rotors, transformers and starting compensators; inside and outside wiring at shops, buildings,
yards and on structures and all conduit work in
Form 1 Award
No. 12046
Page 3 Docket No. 11644-T
91-2-88-2-138
connection therewith, (except outside wiring provided
for in Rule 123)
steam and electric locomotives, pas
senger train and motor cars, electric tractors and
trucks;
include cable splicers, high-tension power
house and substation operators, high-tension line
men, maintenance of automatic train control, automat
ic cab signal equipment and all other work properly
recognized as electricians' work."
(Emphasis added).
After careful consideration of the language of Rule 122 the Board concludes
that it does not reserve to members of the Organization the right to the work
in question.
As the Carrier argues, making up consists of locomotives is clearly
not reserved to the electricians class under the Scope Rule. There is no
language in Rule 122 which mentions cutting or making up consists. The
language referring to locomotives reserves only the performance of electrical
work on locomotives, which has not been established as the only or even a
major component of making up locomotive consists.
The Organization has a somewhat stronger argument concerning the
testing work it claims because the Scope Rule includes "inspecting ...of all
generators ...motors and controls," and specifically the "maintenance of...
automatic cab signal-equipment." Apparently much of the testing work claimed
relates to the automatic cab signal equipment.
However, the Board in this Claim sees no reason to diverge from its
recent decision in Second Division Award 11615, involving the same Parties and
Agreement, and generally the same issue. There this Board held that "testing"
is not synonymous with "inspection," as that term is used in Rule 122. As the
Board noted in that decision, the information provided to the Board regarding
the procedures involved in performing these tests does not indicate that they
involve working on any electrical wiring. As this Board understands it, "testing" as used in regard to the work in question means following a set of procedures to determine if the apparatus is working correctly. On the other
hand, "inspection" of electrical wiring, as covered by the Scope Rule, suggests a more skilled analysis of an electrical problem, which might be necessary, for example, if the initial "testing" showed that there was an electrical problem with the apparatus.
Therefore the Board concludes, as it did in Award 11615, that the
language of the Scope Rule is at best ambiguous with regard to whether this
work is covered. The Organization argues, however, that Award 11615 is not
controlling because it involved machinists, and not just foremen, performing
work allegedly reserved to electricians. However, the reference to Rule 32 in
the decision suggests that foremen were involved, and at any rate, the Board
does not find that this factor affects the determination of what work falls
under the Scope Rule.
Form 1 Award No. 12046
Page 4 Docket No. 11644-T
91-2-88-2-138
The Organization also argues that a fob duty may still fall within a
Scope Rule even if the Rule does not contain the actual words describing the
activity. The Award cited by the Organization, however, involved the actual
cutting and removing of electrical wires. Second Division Award 6117. In
contrast, there is no evidence here that the activities at issue in this case
involved the actual handling of electrical wiring.
As the Board stated in Award 11615, when work does not clearly fall
under the protection of a Scope Rule, the Organization bears the burden of
demonstrating that the work has been performed exclusively, systemwide, by its
members. As the Board noted in that decision, the fact that the Carrier has
paid claims to Organization members at other times or locations is not dispositive, unless the Organization can establish a systemwide practice. Furthermore, it is impossible for the Board to determine, from the evidence
presented in this case concerning the payment of other claims, whether the
work involved there was identical to the work at issue here.
Here the Organization has provided substantial evidence, from statements from its members, and from other Organizations, that at least some of
the work in question was performed by electricians predominantly and perhaps
even exclusively, at this location. But this evidence does not establish that
the work was performed exclusively systemwide by electricians. As the Carrier
notes, our Award 11615 established that there was a mixed practice of mechanics and electricians performing the testing of the coded cab signal equipment
at another Carrier location. This alone establishes that there was not a
systemwide practice with regard to the testing work at issue here.
In addition, the Organization has not established in any way that
members of its craft performed the work of cutting or making up consists exclusively, either systemwide, or even at this location. Therefore, the Organization has established no claim to the work at issue in this Claim through past
practice.
Because the work is not clearly covered by the Scope Rule and because
the Organization has not established a right to the work through an exclusive,
systemwide past practice, the Board concludes that the Claim must be denied.
In reaching this decision, the Board has considered the evidence in Carrier's
Exhibit I. The Board finds that this information was presented on the property, and therefore is admissible under Circular No. 1.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 8th day of May 1991.