CORRECTED
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION Award No. 12476
Docket No. 12142-T
92-2-90-2-282
The Second Division consisted of the regular members and in
addition Referee: Hyman Cohen when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
(Baltimore and Ohio Railroad Company)
STATEMENT OF CLAIM:
1. That the Baltimore and Ohio Railroad Company violated Rule
125 of the Controlling Agreement, when on July 1, 1989, other than
Electrical Worker was assigned to apply a Receiver Display Unit (RDU)
and a two-way radio unit to locomotive unit 6068; and accordingly:
2. That the Baltimore and Ohio Railroad Company compensate
Electrician K. 0. Miller an amount equal to two hours and forty (2:40)
minutes at the then effective straight time rate of pay.
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 cLispute waived right of appearance at hearing
thereon.
As Third Parties in Interest, the International Association of
Machinists and Aerospace Workers, the Sheet Metal Workers International
Association, the International Brotherhood of Firemen and Oilers, the
United Transportation Union Yardmasters Department, and the Joint Council
of General Chairmen were advised of the pendency of this dispute. The
International Association of Machinists and Aerospace Workers, the Sheet
Metal Workers International Association, the International Brotherhood of
Firemen and Oilers, and the United Transportation Union Yardmasters Department
chose not to file a Submission with the Division. The Joint Council of
General Chairmen did not respond.
Form 1 Award No. 12476
Page 2 Docket No. 12142-T
92-2-90-2-282
The events which led to the filing of the instant claim are not
in dispute. The Carrier assigned a Machinist to apply a Rear Display
Unit (RDU) and Track Star Radio to Locomotive 6068 at its locomotive
repair facilities located at Cumberland, Maryland.
The Organization's claim alleges that such assignment violated
Rule 125 of the Agreement because the assignment "is clearly the work
of the Electrical craft." The Organization seeks "an amount equal to
two (2) hours and forty (40) minutes pay at the effective straight time
rate of pay."
The RDU is a receiving device, similar to size and shape to a
radio. It displays a signal from the rear car, which serves to communicate air pressure data, to the Engineer.
The Track Star Radio is a voice communication device located in
the lead locomotive. The purpose of the radio is to have voice contact,
for example, with the Dispatcher, Brakeman and tower personnel.
Both the RDU and the Track Star were swapped from one locomotive
to another locomotive, namely, Locomotive 6068. Both the RDU and the
radio slide into a clean cab mounting rack that had been installed permanently on the locomotive console to hold the RDU and the two-way radio.
The mounting rack contains the connectors for the power and antennae of
the RDU and radio. The radio slides into the top of the rack and the
RDU slides into the rack, directly under the radio.
Upon sliding the radio into the mounting rack, the power cable
and the antenna cable flowing from the rack are connected. The power
supply is connected by an amphenol connector and a coaxial cable connector lead [also flowing from the mounting rack] that connects the
radio to the antenna.
The RDU also has an antenna cable and a power cable in addition
to an axle connector. Bayonet connectors are used on standard units for
the purpose of connecting the system.
The Carrier indicates that no Electricians have been employed
at the Cumberland Ready Track for roughly eight to ten years. It points
out that by its claim the Organization would require the Carrier to
delay a train while it sent for an Electrician to come to the Ready
Track. The Electrician would proceed to swap out the radio and RDU
unit after which he would return to his shop duties, and the employees
who have been idle during this period of time, would then return to
their duties. In addition to the inefficient utilization of resources
implicit in the Organization's claim, the Carrier contends that there
is no support for the claim in the Rules.
Form 1 Award No. 12476
Page 3 Docket No. 12142-T
92-2-90-2-282
Rule 125 of the Agreement provides as follows:
"CLASSIFICATION OF ELECTRICIANS
Electricians' work shall include electrical wiring,
maintaining, repairing, rebuilding, inspecting and
installing of all generators, switchboards, meters,
motors and controls, rheostats and controls, static
and rotary transformers, motor generators, electric
headlights and headlight generators, electric welding
machines, storage batteries (work to be divided be
tween electricians and helpers as may be agreed upon
locally); axle lighting equipment, all inside tele
graph and telephone equipment, electric clocks and
electric lighting fixtures; winding armatures, fields,
magnet coils, rotors, transformers and starting compensa
tors; inside and outside wiring at shops, buildings,
yards, and on structures and all conduit work in
connection therewith (except outside wiring provided
for in Rule 1261; steam and electric locomotives,
passenger train and motor cars, electric tractors and
trucks; including cable splicers, high-tension power
houses and substation operators, high-tension line
men, and all other work properly recognized as elec
tricians' work."
Rule 125 does not clearly and exclusively assign the work in
question to Electrical workers to the exclusion of all other classifications. Accordingly, the Organization carries the burden of proving
that Electricians, exclusively, have performed the work in question.
The Organization seeks support for its contention that the work
belongs exclusively to the Electrical craft, by relying upon a letter
of understanding dated March 25, 1977 from the Carrier. In pertinent
part, the March 25, 1977 letter provides as follows:
"In connection with installation and maintenance
of the radio units, we are agreeable to the following:
1. Radio equipment on all locomotives will be
removed, installed and tested by IBEW members
on the Chesapeake District of the Chesapeake and
Ohio Railway Company and on the Baltimore and
Ohio Railroad Company."
Form 1 Award No. 12476
Page 4 Docket No. 12142-T
92-2-90-2-282
This excerpt from the March 25 letter cannot be severed from the law
entire letter. The letter refers to the "conversion of the radios to four
standard frequencies" which "necessitates approximately 13,700 channel element
crystal changes in approximately 3,800 radio units presently in service,
requiring an estimated 7,600 man hours
..."
As the letter goes on to state,
the conversion "will require increasing the number of radios in service... in
excess of 2,000 and will also result in an increase of the number of radio
maintainers by several positions."
Obviously the March 25 letter refers to change outs for conversion
purposes rather than for the purpose of swapping a radio from one locomotive
to another locomotive. Indeed, at the outset of the March 25, 1977 letter,
the Carrier states: "This refers to previous correspondence and our several
discussions regarding standardization of radio operations to four standard
frequencies on locomotives, cabooses, fixed stations..."
The letter does not contemplate any conversion project other than the
conversion of the radios to four standard frequencies. There is nothing in
the letter that could be construed to refer to the exchanging or swapping of
units from one locomotive to another locomotive.
Furthermore, the Organization refers to the Letter Agreements dated
May 5, 1986, and August 31, 1984, which in the Board's_judgment are not relevant
to the instant dispute. Both letters deal with monitoring devices and not
radios used for voice communication.
Since Rule 125 does not clearly indicate that the work in question is
reserved exclusively to the Electrical Craft, the Organization carries the
burden of proving that the work has been historically and exclusively been
performed by the craft on a system-wide basis. See, e.g., Second Division
Award 6867. The record discloses that the work in question at the various
facilities of the Carrier has not only been performed by the Electrical Craft,
but other crafts as well, including Machinists, Carmen and Sheetmetal Workers.
Accordingly, the work in question does not exclusively belong to the Electricians. See Seetotid Division Award 5718.
The work involved in changing out radios and RDU's is routine in
nature and requires no particular skill of any craft. The work consists of
the uncomplicated task involving the placement or removal of the equipment,
and the plugging in or unplugging of the equipment from the mounting rack on
the locomotive console. The work takes no more than ten minutes to
perform. Thus, "the simplicity of the task, the limited skill involved and
the brief time to perform this work brings it within the defining parameters
of the De Minimus Principle." Second Division Awards 12238, 12239.
Form 1 Award No. 12476
Page 5 Docket No. 12142-T
92-2-90-2-282
As a final matter to consider, the Carrier contends that the principle of res judicata is applicable to this case. In correspondence between
the parties, they were unable to agree on language to hold the instant claim
and a companion claim in abeyance. The correspondence between the parties
indicates that they referred to "similar" if not "identical" dockets which
were awaiting adjudication. The: Second Division Dockets were 11851-T, 11824-T
and 11852-T. The Organization withdrew the claim in Dockets 11851-T which
resulted in Award 12131. On January 15, 1992, the claim in Docket 11824-T was
denied based upon the De Minimus Principle, in Award 12238. In the companion
case, Docket 11852-T which resulted in Award 12239, it was stated that there
is "nothing in the facts and circumstances and the parties' positional arguments to justify a variant conclusion" that had been reached in Award 12238.
Underlying the doctrine of res judicata is the policy of repose. In
other words, when a final decision has been reached, that should be the end of
it. Thus, the final decision is conclusive upon the parties in any subsequent
litigation involving the same tausE.of action.
As previously set forth, the correspondence between the parties
discloses that they referred to Dockets 11851-T, 11824-T and 11852-T as
"similar" or "identical" to the instant case. Although several issues which
have been addressed in this case were not mentioned in Second Division Awards
12238, 12239 and 12131, it is sufficient to state that these Awards were given
great weight in connection with. the issue dealing with the De Minimus Principle.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy,_11ever - Executive Secretary
Dated at Chicago, Illinois, this 4th day of November 1992.
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