Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12072
SECOND DIVISION Docket No. 11566-T
91-2-88-2-45
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup 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 94 in particular, when they improperly assigned other than
sheet metal workers to inspect, connect and disconnect air hoses; inspect for
proper cooling water levels and leaks; and inspect operation of air brakes and
sanders on locomotives at Memphis, Tennessee on October 11, 1986, following
the blanking and abolishment of the sheet metal worker's position on that
shift.
2. That accordingly, the Carrier be required to compensate Sheet
Metal Worker E. W. Gregory in the amount of eight (8) hours of pay at the rate
of time and one-half the prevailing rate 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 employer involved in this
dispute are respectively carrier and employer 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 claim filed by the Organization alleges that the Carrier blanked
a first shift Sheet Metal Worker position at Memphis, Tennessee, on October
11, 1986, and thereafter used an Electrician and a Machinist to perform the
work of inspecting, connecting and disconnecting air hoses, of inspecting for
proper cooling water levels and leaks, and of inspecting the operation of air
brakes and sanders on locomotives. The Organization alleges that the work in
question was reserved exclusively to the Craft in accordance with Work Classification Rule 94. This Rule reads:
Form 1 Award No. 12072
Page 2 Docket No. 11566-T
91-2-88-2-45
"Rule 94: Sheet Metal Workers' work shall consist of
tinning, coppersmithing and pipefitting in shops,
yards, buildings and on passenger train cars and
engines of all kinds; the building, erecting, assem
bling, installing, dismantling and 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, solder
ing, tinning, leading and babbitting, the bending,
fitting, brazing, connecting and disconnecting of
air, water, gas, oil and steam pipes; cutting and
threading pipe except as defined in Rule 96; the
operating of babbit fires, oxyacetylene, thermit and
electric welding on work generally recognized as
sheet metal workers' work, molders' work and all
other work generally recognized as sheet metal
workers' work."
The Organization also argues that the work at bar belongs to the Sheet Metal,
craft as a matter of past practice.
Absent resolution of this claim on the property it was docketed before this Board for final adjudication. The Board advised the International
Association of Machinists and Aerospace Workers, the International Brotherhood
of Electrical Workers and the American Railway and Airway Supervisors Association of their right to submit a Third-Party Submission in accordance with
Section 3, First (j) of the Railway Labor Act. A Third-Party Submission was
forwarded to the Board by the International Association of Machinists and
Aerospace Workers wherein it is argued that neither contractual right or past
practice reserved the work in question to Sheet Metal Workers. The International Association of Electrical Workers also filed a Third-Party Submission
and objected to the merits of the Organization's position. The American Railway and Airway Supervisors Association did not file a Third-Party Submission.
The Sheet Metal Workers filed a rebuttal submission to the International Association of Machinists' Third-Party Submission.
In denying the claim the Carrier argues that the first shift position
in question was not "blanked" as asserted by the Organization. Rather the
position was abolished two years earlier due to insufficient work to justify
the employment of a Sheet Metal Worker. The Carrier states that no exception
was taken to the abolishment until the filing of the instant claim. In this
regard, the Carrier alleges that the Organization's claim is in violation of
the time limit Rule 34(a) account it was not progressed until approximately
two years after the position was abolished.
Notwithstanding the foregoing, the Carrier asserts that the language
of Rule 94 does not reserve the work in question to the craft of Sheet Metal
Workers. It is the Carrier's position that manipulating gladhands on rubber
air hoses does not constitute connecting and disconnecting "pipes." Further,
the inspection for proper water levels/leaks, and the inspection of air brakes
and sanders is not work designated by Agreement to Sheet Metal Workers.
Form 1 Award No. 12072
Page 3 Docket No. 11566-T
91-2-88-2-45
The Carrier holds that the connecting and disconnecting of air hoses
on this property is work performed by Engineers, Firemen, Brakemen, Laborers,
and Machinists and has never been exclusively performed by Sheet Metal Workers." Likewise Machinists perform air brake tests. Inspection of water
levels/leaks according to the Carrier, is "nothing more than a visual inspection" and does not involve connecting water pipes to reestablish proper water
levels. This inspection requires the use of a simple plastic or rubber water
hose. In summary, the Carrier asserts that the work in question is not reserved to Sheet Metal Workers by Agreement or by past practice and that it is,
in fact, work not requiring special tools or skills.
After review of the facts in this case the Board concludes first of
all that the Sheet Metal Worker position in question was, in fact, abolished
on June 29, 1984 and not "blanked" on October 11, 1986. The premise upon
which the instant claim is based is, therefore, flawed. Further, a close
reading of Rule 94 does not warrant conclusion that it exclusively reserves
the work in question to the craft. Precedent Awards submitted by the Organization have been restudied. Second Division Awards 9837, 10099 and 10205
were rendered on another property wherein the Carrier acknowledged that the
work in question belonged to the Sheet Metal Workers. Such is not the case
here. Additionally, in the former Award, the work was found to be of a
"de minimus" nature. In Award 10049 the Board found the work performed to
be incidental to the Sheet Metal Worker's main duties. While Award 6341 lends
support to the Organization's position the Board here finds it to be in conflict with more well-reasoned Awards such as Second Division Awards 6211,
6727, 9992 and 11535.
It is well established that where Agreement language does not grant
exclusivity with regard to the assignment of work then the burden is on the
Organization to show that the aggrieved work is reserved to their craft by
system-wide practice historically, traditionally, and customarily (Second
Division Awards 5525, 5921, 11162 and 11246).
The Organization's reference to the Miami Agreement of February 13,
1958, is inapplicable since the Carrier was not signatory to that Agreement.
The issues related to relief, to the correctness of the Claimant
cited in this case will not be addressed by the Board since the claim must be
denied on merits.
A W A R D
Claim denied.
Form 1 Award No. 12072
Page 4 Docket No. 11566-T
91-2-88-2-45
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: 00000 ~~'
Nancy J ~er - Executive Secretary
Dated at Chicago, Illinois, this 10th day of July 1991.
Labor Members' Dissent
To
Award 12072 Docket No. 11566-T
It is inconceivable that the majority could totally
disregarded the precedent awards cited by the Organization in
their conclusion of this issue before the Board.
The majority opinion disregarded the precedent awards when
they concurred with the Referee's findings that "Award 6341
lends support to the Organization's position", reflects a
cavalier attitude toward such award and the agreement.
This claim was restricted to the location cited and has no
hearing on practices at other locations. The result of this
Award is to continue to deny to the Sheet Metal Workers'
Craft work that has been historically performed by that
craft.
The majority's finding is a continuing attempt to further
dilute the existing Rule and historical practice on this
property.
Therefore, because this decision is so erroneous, we are
compelled to Dissent.
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