Docket No. MW-6777
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Fred W. Messmore-Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
THE BALTIMORE AND OHIO RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of System Committee of the Brotherhood:
(1) That the Company violated the agreement when they assigned trackmen to paint white stripes across 6 highway crossings at
Wapakoneta, Ohio on the Toledo Division;
(2) That Carpenters F. P. Howard, V. A.
Drury and Ralph
Ellerbrock be paid 48 hours each at their respective rates.
JOINT STATEMENT OF FACTS:
As an added measure of safety it
has been determined that all highway grade crossings on the property should
be striped with white paint in accordance with newly adopted standards.
These standards call for painting a stripe 8 inches wide along both sides of
the road way and two 4 inch stripes at the center line. On single track crossings the length of these stripes is 9 feet, and on multiple track crossings the
stripes extend a distance of 2 feet beyond the outside rails.
When the painting of these stripes was initiated, it was performed by the
hand brush method by section men under the direction of section foremen,
but the Carrier has now purchased striping machines which apply uniform
paint stripes as the machine is pushed along by hand. These striping machines
have been used now for approximately two years.
On February 18 and 19, 1952, crossing numbers 7441, 7443, 7444, 7445,
7446 and 7448 at Wapakoneta, Ohio were striped by trackmen using the hand
brush method in accordance with the newly adopted standards. Total labor
involved in striping these crossings amounted to 134 hours.
POSITION OF EMPLOYES:
The Joint Statement of Facts as submitted herein was drafted in its entirety by the Carrier and submitted to the
Employes during a conference held February 25, 1953, as a result of the
Carrier's advice during a conference held on December 19, 1952, that they
were agreeable to a joint submission of the instant dispute to this tribunal.
Although the Employes subsequently advised the Carrier that their
proposed Joint Statement of Facts met with the Employes' approval, the
statement made in the last sentence of the second paragraph requires clarification.
[4347
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OPINION OF BOARD:
The claim here is to the effect that the Carrier
violated the Agreement when it assigned trackmen to paint white stripes
across six highway crossings at Wapakoneta, Ohio, on the Toledo Division,
and the claimant carpenters, three in number, should be paid 48 hours at
each of their respective rates. There is a joint statement of facts in this case,
which are in substance as follows:
"As an added measure of safety it has been determined that
all highway grade crossings on the property should be striped with
white paint in accordance with newly adopted standards. These
standards call for painting a stripe 8 inches wide along both sides of
the roadway and two 4 inch stripes at the center line. On single
track crossings the length of these stripes is 9 feet, and on multiple
track crossings the stripes extend a distance of 2 feet beyond the
outside rails. When the painting of these stripes was initiated, it
was performed by the hand brush method by section men under the
direction of section foremen, but the Carrier has now purchased
striping machines which apply uniform paint stripes as the machine
is pushed along by hand. These striping machines have been used
now for approximately two years. On February 18 and 19, 1952,
crossing numbers 7441, 7443, 7444, 7445, 7446 and 7448 at Wapakoneta, Ohio, were striped by trackmen using the hand brush method
in accordance with the newly adopted standards. Total labor involved in striping these crossings amounted to 134 hours."
It is the contention of the Employes that Rule 1(c) of the Agreement
is applicable and applies to the claimants in the instant case. It reads as
follows:
"Carpentry, painting, glazing, tinning, roofing, plastering, bricklaying, paving, masonry and concreting required in the construction
and maintenance of railroad structures, other than tunnels, shall be
performed by B&B forces. Such work in tunnels and all concreting
by the gunite method shall be performed by tunnel forces."
Rule 1(c) under provisions of Section (b)6 of the effective Agreement
reads as follows:
"This Agreement does not apply to * ' the following work
when performed by other than B&B forces:
(a) Minor repairs to roundhouses, storehouses and other shop
buildings and material storages within he confines of the shop or
store yards pertaining to safety, when B&B forces are not available,
such as repairing broken boards in floors or platforms, and installing
window panes.
(b) Maintaining and painting material bins and tanks within
store rooms or oil houses.
(c) Placing of bearings for heavy material where solid platforms are not required.
(d) Any white-washing of structures within the confines of
the shop yard or stores yard."
Rule 1(d) reads as follows:
"The following work will be considered a trackman's work: Relaying and repairing of crossing plank, except at crossings planked
solid and requiring framing or fitting, temporary repairs to platforms, roofs, stockpens and other similar work required to be done
at once to prevent damage to persons or property, painting of switch
stands or other track appliances."
6941-10
443
We believe this rule is evidence that the construction and repairing and
maintenance of certain types of highway crossings is work that belongs to
bridge and building forces. The work of relaying and repairing highway
crossings which are planked solid, such as are here involved, is admittedly
work of the bridge and building forces and not work of the track forces.
Each and every section of the rules requiring bridge and building forces is
specifically spelled out in the aforementioned rules. We believe that, under
the circumstances involved in this case, the following would be applicable:
Award 323. (Language of the same character appears in other awards.)
If the Carrier could farm out any part of the labor necessary to its operations,
it could arrange with others to do a large part or all of it, impairing the
rights of its employes to handle the jobs which the entire spirit and intent of
the Agreement assures. The difference would only be one of degree. So
long as the work exists in the prosecution of its business, it is theirs under
the schedules, and such is the meaning and effect of seniority.
We believe, from a careful analysis of the record and the factual situation here involved, that (1) and (2) of the claim should be and are hereby
sustained.
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
The Carrier violated the Agreement.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: (Sgd.) A. Ivan Tummon
Secretary
Dated at Chicago, Illinois, this 29th day of March, 1955.