STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood, that:
EMPLOYES' STATEMENT OF FACTS: On or about October 1, 1951, the Carrier deemed it necessary to have its sewers and pipe lines in the Los Angeles Union Passenger Terminal cleaned and although the Carrier possessed the necessary employes and tools to perform this cleaning work, it elected to contract the work to the Flexible Sewer Cleaning Division of the Flexible Sewer Rod Equipment Company.
The contractor's forces consisted of three men and a foreman, and they worked a total of eighteen days in performing the cleaning work.
Four days were consumed in cleaning that portion of the sewers under the court yards at the terminal, using the Contractor's Sewer Cleaning Machine.
It later developed that the Contractor's machine was too large for the sewers inside and under the buildings, consequently the remaining fourteen days' work was done manually, using ordinary water service tools, and was performed principally during overtime hours.
In conversation with the Contractor's forces, they admitted that their specialty was cleaning sewers and pipe lines for large industries such as Oil Refining Companies and Chemical Companies and that the Terminal was outside their normal line of work.
The machine used by the Contractor during the first four days is gasoline operated and with this machine the Contractor made a maximum "cut" of
The claim is ambiguous as it does not name the claimants for whom claim is made nor does it specify the dates involved in the claim.
Southern Pacific Los Angeles Division employes have no rights at the Terminal except as provided in agreement of April 13, 1939 (Exhibit 1).
As established in Paragraph 4 of Terminal's Statement of Facts, no assignment could be made to Southern Pacific employes pursuant to agreement of April 13, 1939 (Exhibit 1), and no Southern Pacific employes could have been adversely affected, unless more than six additional positions were established, and inasmuch as the work in dispute involved only four men for period of approximately eleven days, no Southern Pacific employes could have acquired the right to work in the Terminal during the period involved.
Stated otherwise, regardless of any other factor, the .instant claim for pay in favor of each water service employe holding seniority on the Los Angeles Division of the Southern Pacific Company would still be without merit or basis because of the undeniable fact that no additional maintenance of way (water service) employes of the Southern Pacific would have stood for the work or have been adversely affected in view of the provisions of the agreement of April 13, 1939 (Exhibit 1), to which the petitioner is a party signatory. In the event there were any agreement, requirement that the Terminal secure railroad forces to perform the work involved, which the Terminal denies, the additional force would undeniably have come from Union Pacific and Santa Fe forces, pursuant to agreement of April 13, 1939.
For the Board's information, copy of Southern Pacific Company (Pacific Lines), Los Angeles Division seniority roster of January 1, 1951, for Water Service Sub-department is attached as Carrier's Exhibit 3. Not only is it a fact that no employe on the Los Angeles Division could have been adversely affected by the subject of dispute, but any conceivable relationship between some of the employes such as caretakers and pumpers with the dispute is absolutely nil,
The carrier desires to reiterate that the instant claim covers work not spelled out or contemplated or covered by agreement provisions in evidence; that the work has been required but once in more than twelve years; that the Terminal does not possess the equipment to handle the work and has had use for the same but eleven days in more than twelve years; and that employes of the contractor specializing in the work possessed special skills not required or possessed by Terminal forces.
The Terminal asserts that it has conclusively established that the claim in this docket is without basis or merit, and therefore respectfully submits that it should be denied.
All data herein submitted have been presented to the duly authorized representative of the employes and are made a part of the particular question in dispute.
OPINION OF BOARD: This dispute arose when Carrier assigned work of cleaning sewer lines in the Los Angeles Passenger Terminal to a contractor not under the Agreement.
and citing Awards 1314, 3955, 5747, 5872 and 4800. And Article 11Seniority, and alleging employes thereunder were qualified to perform the work and Carrier owned the necessary equipment to perform the work. The record shows two photographs, Exhibits "A" and "B," the latter being th machine owned by Carrier which had been used in the past to perform the work when done by employes, and "A," the machine used by the Contractor's forces. Both machines used in cleaning sewers and that the only essential difference in the machines is that contractor's machine is operated by gasoline motor while Carrier's machine has an electric driven motor, and citing other awards, in particular, Award 4755.
Respondent Carrier takes the position that employes working in the Terminal are drawn from the forces of the three Carriers using the Terminal. The proportionate share is based on the number of ears handled for each Carrier, and such employes retain their employe relationship with, and senioriy status on the parent line. Under such agreement, as of October 1, 1951, there were 47 employes of the Southern Pacific, Santa Fe and Union Pacific, working in the Terminal:
Under agreed upon apportionment based on "using cars" in the preceding year, as set forth in agreement of April 13, 1939, employes of the three roads were subject to apportionment as follows:
That from this tabulation six more positions were assigned to Southern Pacific than such employes were allocated pursuant to agreement and in the event additional positions were established at the Terminal, positions would be assignable to employes of Santa Fe and Union Pacific, and no assignanent would be made to Southern Pacific Employes unless more than six additional positions were established.
It is contended that the Terminal did not possess the specialized power equipment necessary to restore waste lines to original inside diameter, nor did any of its employes have the experience and special skills required for the particular work involved. These various specialized skills and the service performed by the Pipe Cleaning Division of the Flexible Sewer Rod Equipment Company are cited to show the nature of the work done by Contractor's employes.
(1) This is a claim against the "Los Angeles Union Passenger Terminal" and not a claim against the Southern Pacific Railroad; 6543-11 5 7 6
(2) That the "Los Angeles Union Passenger Terminal" is a separate and distinct Company, owned by three tenant lines. Therefore, the Terminal Company and the Southern Pacific are not one entity as treated y employes in this record. Cited is Award 5304 on the matter of special skills required which were not possessed by the Claimants therein and the claim therefore was denied. ,
In the record in this case one disputed matter relates to the machine owned by the Company which was previously used by employes to do the work in question, in that, it is contended, it was broken and therefore out of service at the time in question. We find no sufficient reason given relative to any effort made to repair the same and thereby must conclude that it could have been put in condition to do the required work.
On the question of ownership of the Terminal we find that the Southern Pacific Railroad assigned the work to the Contractor and apparently assumed responsibility for it.
In the matter of special skills and equipment, Carrier raising this defense carriers the burden of establishine the fact and this it has failed to do so the record shows that employes have in the past performed like and similar work, with equipment owned by the Terminal Company. Therefore, we believe such defense is untenable under facts shown herein. Also, without going into detail, we feel that the Scope Rule covers the work in question and assignment of personnel to perform the same could have been worked out by conference between the parties. Such consultations or conferences were not held under the facts here presented.
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 Employes involved in this dispute are respectively Carrier and Employes 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