CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD
COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: The claimant, Mr. Theodore Anderson was employed in and holds seniority in the Maintenance of Way Welding Sub-department as follows: Welder Laborer, January 23, 1948; Grinder, July 10, 1948; Welder, September 1, 1950.
On September 29, October 13 and 18, December 7, 9, 14 and 22, 1954, the Carrier assigned an employe holding seniority in the Track Sub-department to perform the usual and customary work of Maintenance of Way Welders; specifically the work consisted of using a welder's acetylene torch to cut track bolts, rails, etc. in connection with track repair work in the Carrier's Twin City Terminals.
On the aforementioned dates, the claimant was working in the above referred to terminals, within sight of the point where the involved work was being performed.
Track employes and Welders hold seniority in separate and distinct Subdepartments.
The agreement violation was protested and the instant claim was filed in behalf of the claimant.
OPINION OF BOARD: The Organization's theory of this case is that the acetylene torch used by certain track men in the dismantling and removing rail from old street car crossings is a "welding device" within the meaning of Rule 46 (h) which reads as follows:
That the meaning of this rule is clear to the Organization appears from a letter which the General Chairman wrote the Carrier on December 13, 1954 which says in part, "If we were to agree with you that trackmen, bridgemen and others would have the right to use the torch for cutting purposes then eventually they will learn to do welding and to that we will not agree."
Sometimes, no doubt, there is no physical or technical difference between a torch used for welding and one used only for cutting, and they could be used for both purposes, but under the facts in this case the torch used did not become a "welding device" because it was not used to do any of the things enumerated in Rule 46 (h) supra.
Employes rely particularly on a letter, Mr. Jackson's Circular Letter No. 123 dated February 14, 1950, subject-Use of Cutting Torch on Rails.
Employes in the welding department have, since its start, been forbidden to torch out bolt holes in the web of rails and have been cautioned continually regarding its use on rail in any way. Holes must be drilled in rail. Our employes who are required to make replacement rails for crossings or frogs in the field have no other means of cutting rail to shape except with the cutting torch. The finish out must always be made with a grinder to remove slag from the torch cut and provide a smooth cut surface of correct shape.
The use of a cutting torch to straighten up a slightly misplaced hole in a replacement rail creates a condition as dangerous as cutting the entire hole. The rail will eventually break and may result in a derailment.
The purpose of this letter is to impress the younger men in the department with the importance of this subject as well as refresh the memory of the senior employes.
Our comment on the letter is this: It is directed to the employes in the welding department, not to the track workers. It tells how cutting torches (does not say welders' torches) are not to be used by welders on rails in use, because of the possible damage to the rail. There is no suggestion that a cutting torch should not be used by track men on a dismantling job. It was directed at a misuse by the welders of a cutting torch.
Employes admit of the past practice by the Carrier in permitting others than welders to use "such a tool", but rely on those awards which hold that continued violation cannot change the rule. 8153-16 g27
The fact is that the practice complained of here has been going on for at least 24 years, and this claim is the first to be filed. The rule relied on here was adopted in 1940 and so far as the record shows, the Organization made no effort to have the rule changed to accomplish the result sought here.
Past practice may be shown to indicate an agreed-upon interpretation and that the use of the torch in question did not belong exclusively to the welders.
It seems to us that this and similar disputes could be avoided by keeping in mind the simple definition of welding "To unite metallic parts by (1) heating the surfaces to be joined and then allowing the metals to flow together"Webster's New Collegiate Dictionary, 1949 Ed., Page 971.
We are not overlooking the recent Award 7958 which involved the same parties and the same rule but note that was a dispute between two groups as to which was entitled to do welding on a bridge, and since Rule 46 (h) specifically includes bridge welding, it is not controlling in the instant case.
Our conclusion is that no violation of the Agreement was shown and the claim should be denied.
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