NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
THE DENVER AND RIO GRANDE WESTERN
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood, that:
EMPLOYES' STATEMENT OF FACTS: A number of highway crossings at Canon City, Colorado, were scheduled for renewal and accordingly, sufficient planking and other necessary material was loaded at Pueblo, Colorado, by Bridge and Building forces for shipment to Canon City, Colorado.
In the meantime, the B. & B. forces learned that the crossing plank installation work was expected to be assigned to Track Department employes, whereupon they advised the Division Engineer and the B. & B. Supervisor that crossing plank installation work belonged to Bridge and Building Department employes. Consequently, the B. & B. gang was directed to perform the crossing plank installation work at Canon City.
However, after completing such work on two tracks at Ninth Street, the B. & B. gang was assigned to other duties and the work of installing crossing planks was thereafter assigned to Track Department forces at Canon City.
Framing, fitting, leveling, and drilling work was a necessary and integral part of the crossing plank installation work, with each plank solidly fastened to track ties by lag screws. Holes were drilled through each plank at points where lag screws were to be inserted and lag-screw heads countersunk into the plank by means of larger holes drilled to accommodate the lag-screw heads. It was also necessary to drill guide or "starter" holes in each tie at points where lag screws were inserted.
Certainly it can be said with the utmost candor if there was any prohibition in the current Agreement against the use of track forces to install, remove, repair and/or replace crossing planks it would not be necessary for the Employes to propose such a rule as they did in their letter of December 31, 1953. Furthermore, if track forces-in the instant case-were required to perform work whih they had not customarily performed, there is no question but what they would have claimed the Bridge and uilding Carpenter rate. This they have never done.
Incidental to the installing, removing, repairing and replacing the crossing plank involved, the track forces performed any track maintenance work necessary such as changing rail, inserting ties, tamping ties, tightening rail joints, etc.
The Bridge and Building forces enumerated in claim lost no time. They worked and were compensated at their proper rates of pay on dates involved in claim.
As hereinbefore stated, it has been the practice on this property for over fifty years to require track forces, under the supervision of a section foreman, when necessary to install, remove, repair and/or replace crossing plank.
It is the Carrier's contention-as well as its position-that such work is not the exclusive work of Bridge and Building forces and asserts that since the various working agreements with the Maintenance of Way Organizations have never defined the work of Bridge and Building forces or track forces, the practice over a period of fifty years-without any effort on the part of the Employes to change the practice when new working agreements were negotiated-should be controlling. To support this statement the attention of your Honorable Board is invited to your Awards 3727, 4922 and 4559.
This claim to be allowed must be supported by rules of the current Maintenance of Way Agreement. That there is no rule to support the claim is evidenced by the fact the representative of the Employes in his letter of December 31, 1953 submitted to the Carrier a proposed rule to cover the work involved. This letter the Carrier asserts is ample evidence there was no violation of agreement rules in the instant case and-together with the long established practice_ as well as the provisions of Award 6007 of your Honorable Board warrants denial of the claim.
All data in support of the Carrier's position has been submitted to the Employes and made a part of the particular question in dispute. The right to answer any data not previously submitted to Carrier by the Employes is reserved by Carrier.
OPINION OF BOARD: Track Department employes were used to install crossing planks and Bridge and Building employes claim the work was theirs. 7050-8 478
The work consisted of framing, fitting, leveling and drilling. Holes were drilled through each plank at points where lag screws were to be inserted and lag screw heads were countersunk into the plank by means of larger holes drilled to accommodate the lag screw heads. It was also necessary to drill starter holes in each tie where lag screws were inserted. Planks had to be sawed to proper length and shims had to be fitted between the crossing plank and the track tie so as to bring the top of each plank level with the top of the rail. The tools used were braces, bits, saws, drills, tee wrenches, etc.
The Scope Rule does not describe the duties of particular positions; it simply lists general titles of positions such as "mechanics in the Bridge and Building Department" and "Track Laborers and all other classes of Maintenance of Way Laborers."
Although titles are an uncertain guide to what the actual duties of a position are, some types of work clearly fall under an occupational title according to ordinary, common understanding See Award 4800 (Carpenters performing steel work) and Award 5484 (track laborers rebuilding telephone lines). In clear cases such as these past practice is immaterial.
We are unable to conclude that the work in dispute here is so clearly foreign to normal track maintenance as to preclude consideration of past practice. Tools used are not necessarily determinative. There is evidence that this work has occasionally been performed by Bridge and Building employes but the evidence establishes its greatly preponderant performance by Track Department employes over many years.
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