CHICAGO, BURLINGTON & QUINCY RAILROAD
COMPANY
STATEMENT OF CLAIM: "Claim of Bridge and Building Employe, H. S. Cooper, Hannibal Division, based upon the application of Schedule Rule 52, that he be paid Bridge and Building Helpers rate of pay of 55 cents per hour in lieu of Bridge and Building Laborer's rate of pay, i. e. 43 cents per hour, for services performed on August 1st 2nd 3rd, 5th, 6th, 7th, 8th, 9th, lot, 12th, 13th, 14th, 15th, 16th, 17th and 19th, 1940."
EMPLOYES' STATEMENT OF FACTS: "During the period from August 1 to August 19, 1940 Mr. H. S. Cooper was employed in Bridge & Building Gang No. 3, under the supervision of Foreman W. L. Roberts. The work performed by H. S. Cooper on the dates enumerated in the Statement of Claim was that of operating an air hammer machine and he received for this class of work 43 cents an hour. The rate of 43 cents is the agreement rate for Bridge & Building laborers.
"The class of work performed by H. S. Cooper was that of a Bridge & Building helper and the rate provided for in the agreement for this classification is 55 cents per hour. This resulted in Cooper's being underpaid 12 cents per hour for eight hours on each of the 16 days in question. The total amount due Cooper, therefore, is $15.36."
POSITION OF EMPLOYES: "Rule 52, Sections (f) and (g) of the current agreement between the Brotherhood and the Carrier read as follows:
"The Employes contend that H. S. Cooper was assigned to operate a mechanical device on the dates here involved and the work performed by him came within the provision of Rule 52 (f), and for this reason, we contend, the helper's rate of pay should have been paid him.
"Section (g) of Rule 52 provides and classifies work to be performed by Bridge & Building laborers. The work performed by Cooper on the dates involved in this claim was that of a Bridge & Building helper and not work
"There were laborers senior to Cooper in the seniority district, and he was classified and assigned according to his seniority rank and qualifications. H. S. Cooper was properly classified according to his seniority."
POSITION OF CARRIER: "The work in question required no skill whatever and can only be classified as laborers' work. Therefore, under the provisions of Rules 52 (g) and 52 (h) payment of laborers' rate was proper."
OPINION OF BOARD: This dispute involves the construction of certain subsections of Rule 52 of the agreement between the Carrier and the Brotherhood of Maintenance of Way Employes, effective June 1st, 1938. The pertinent provisions are as follows:
"(a) An employe skilled in and assigned to the construction, repair or maintenance of buildings, bridges or other structures, in the Bridge and Building Department, will be classed as a Bridge and Building Mechanic.
"(f) An employe asssigned to assist the respective mechanics outlined in the foregoing paragraphs of this rule will be classed as Helper. Helpers will be required to provide only such mechanics' tools as may be necessary for them to learn the trade.
"(g) An employe in the Bridge and Building Department regularly assigned to do work recognized as laborer's work, such as excavating, back filling or similar pick-and-shovel work, loading and unloading materials will be classed as a Bridge and Building Laborer.
"(h) Bridge and Building Gangs will be composed of foremen, mechanics, helpers and laborers. The number of positions of mechanics, helpers and laborers assigned in each gang will be in proportion to the nature of the work to be done in the ensuing month, but in no case, on an Operating Division, will the number of helpers and laborers exceed the number of mechanics . . . .
It is recognized that work in Bridge and Buil4ing . . . Gangs is of such nature that employes must work more or less as a unit and when the ratio herein provided is adhered to, it will not be construed as a violation of Rule 56 for lower rated employes to assist and work with higher rated employes on the work to be performed."
"An employe temporarily assigned by proper authority to a position paying a higher rate than the position to which he is regularly assigned for four (4) hours or more in one day will be allowed the higher rate for the entire day . . . .
During the period covered in this dispute the claimant, Cooper, was one of four laborers in Bridge and Building Gang No. 3, wich was composed also of four mechanics and one Helper.
On the days in question, August 1, 2, 3, 5, 6, 7, 8, 9, 10, 12, 13 14, 15, 16, 17 and 19, 1940, the gang was engaged in removing the upper five feet of both masonry abutments of Bridge 134.17. This work was preliminary to 1601-4 475
replacing the masonry with steel and concrete. In removing the masonry two compressed air hammers were used, one requiring two men to operate. It is established with reasonable certainty that Cooper was engaged in operating one or the other of these hammers for four hours or more upon the days in question. Treating Cooper as a Bridge and Building Laborer, the Carrier paid him for the days in question at the rate of 43 cents an hour. The petitioner contends that, under Rule 56, he should have been paid the Helper's rate of 65 cents per hour.
The Carrier contends: first, that the work performed was common labor; and second, that the entire gang was engaged as a unit in the operation, and that Rule 6 is not applicable in the light of the provisions of the last paragraph of Rule 52 (h), above quoted. The same contention was decided adversely to the Carrier with reference to this same rule in the disputes involved in Awards 1251 and 1430.
So the issue is resolved to the question of whether Cooper, in operating an air hammer on the days specified, was engaged in common labor in contemplation of Rule 52 (g), aboved quoted. The Board is of the opinion that he was not. Such an operation does not come within the express or implied scope of Rule 52 (g). Furthermore, the removal of the masonry abutments constituted an integral part of the "repair or maintenance" of the bridge contemplated in Rule 52 (a) defining Bridge and Building Mechanic. Cooper, therefore, in operating the air hammer on the days in question came within the scope of Rule 52 (f) defining Helper.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon and upon the whole record and all the evidence, finds and holds:
' That the carrier and the employe involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That there has been a violation of the agreement in assigning claimant to helper's work, while paying him at the laborer's rate, for the days in question.