NATIONAL RAILROAD ADJUSTMENT BOARD
Charles W. Webster, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS
STATEMENT OF CLAIM: Claim of the System Committee of the
Brotherhood that:
(1) The work of constructing and assembling battery box racks
is encompassed within the scope of this Carrier's Agreement with the
Brotherhood of Maintenance of Way Employes and the Carrier
violated said Agreement when it assigned such work to employes
outside the scope thereof;
(2) The work of constructing and assembling battery box racks
be restored to employes holding seniority under the aforesaid Agreement in accordance with a practice and recognition of some thirty (30)
years;
(3) Furloughed B&B Mechanic H. H. Harvey be allowed fifty
(50) hours' pay at the B&B Mechanic's rate because of the amount of
such work transferred and/or assigned to other than B&B forces
between November 21, 1955, and January 29, 1956.
EMPLOYES' STATEMENT OF FACTS: Maintenance of Way B&B Department employes have historically and traditionally performed the work of
constructing and assembling battery box racks on this Carrier.
Between November 21, 1955, and January 29, 1956, the Carrier assigned
and/or permitted Signal Department employes, who hold no seniority rights
under the effective Agreement, to perform this work and failed and refused
to utilize the services of B&B Department employes in connection therewith.
The Carrier had been placed on notice of our position in a letter reading:
"300-245-C
October 6, 1955
Mr. E. T. Lytle
Division Engineer
M-K-T- Lines
Denison, Texas
Dear Sir:
It is our information that recently Bridge and Building Gang
[2857
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The Third Division, National Railroad Adjustment Board, is without jurisdiction to provide the relief requested by the employes and the Carriers
respectfully request that the claim be denied.
All data submitted in support of the railroads' position have been heretofore submitted to the employes or their duly authorized representatives.
The railroad requests ample time and opportunity to reply to any and all
allegations contained in submission and all pleadings of the employe or em.
ployes and the Brotherhood of Maintenance of Way Employes.
Except as herein expressly admitted the Missouri-Kansas-Texas Railroad
Company and Missouri-Kansas-Texas Railroad Company of Texas deny each
and every, all and singular, the allegations of the employe or employes and the
Brotherhood of Maintenance of Way Employes.
For each and all of the foregoing reasons, the Missouri-Kansas-Texas Railroad Company of Texas respectfully request the Third Division, National Railroad Adjustment Board, deny said claim and grant said Missouri-Kansas-Texas
Railroad Company of Texas all other relief to which they or either of them
may be entitled.
(Exhibits not reproduced.)
OPINION OF BOARD:
This is a claim wherein the Organization alleges
that the Carrier violated the Agreement by assigning work belonging to it to
the Signalman.
In addition to the issue on the merits the Carrier has raised certain procedural questions which they claim determine the issue without consideration
of the substantive issue.
First: They state that because the claim is made on behalf of a furloughed
employe that he is not an employe under the Railway Labor Act. This Division
has so often awarded relief to furloughed employes that this argument must be
dismissed without merit.
Second: The contention is made that the appeal to the National Railroad
Adjustment Board was untimely in that the ex parts submission was not presented to the Board within the time period. The fact is that the Organization
notified the Executive Secretary of its intention to file its ex parts submission
well within the time. This Division feels this issue has been determined adversely to the Carrier on many occasions. A well reasoned opinion is found in
Award 9059 by Referee Johnson in which he stated:
"This claim was finally denied on the property on December 31,
1954; the Brotherhood on December 29, 1955 gave notice of its intention to file an ex parts submission within thirty days, and filed it on
January 25, 1956. The Question is whether the appeal was taken to
this Board on December 29, 1955, within twelve months after December
31, 1954, or not until January 25, 1956, more than twelve months later.
"This Board's Rules of Procedure provide as follows:
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'EX PARTE SUBMISSION.-In event of an ex parte submission the same general form of submission is required. The
petitioner will serve written notice upon the appropriate Division of the Adjustment Board of intention to file an ex parts
submission on a certain date (thirty days hence), and at the
same time provide the other party with copy of such notice.
For the purpose of identification such notice will state the
question involved and give a brief description of the dispute.
The Secretary of the appropriate Division of the Adjustment
Board will immediately thereupon advise the other party of
the receipt of such notice and request that the submission of
such other party be filed with such Division within the same
period of time.'
"The Third Division has held (Award 7144) that the filing of the
notice of intention to present an ex parts submission constitutes the
institution of the proceeding here. Like holdings have been made by
the Second Division (Awards 2135, 2286, and 2342) and by the Fourth
Division (Award 976). (The First Division has apparently abolished
the notice of intention.)
"The Carrier argues that the Board's rule and the above awards
are void because Section 3 First (i) of the Railway Labor Act provides that unadjusted disputes 'May be
referred by
petition of the
parties or by
either party
to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data
bearing upon the dispute.'
"The argument is that since under that statute, a proceeding is to
be 'referred' to the Board 'by petition * * * with a full statement of
the facts and all supporting data,' the Board acquires jurisdiction only
by the filing of the ex parte submission, and that the Board's Rules of
Procedure and awards to the contrary are void.
"While such a construction is possible, we do not consider it
reasonable. The National Agreement of August 21, 1954 prescribed the
time for appeals to this Board because the Congress had not seen fit to
do so. The Congressional Act evinced no concern with the time or
manner of this Board's acquisition and conduct of proceedings, but
provided by Section 3 First (u) that the Board should 'adopt such rules
as it deems necessary to control proceedings before the respective
divisions * * *: It did provide, of course, that such rules must not be
'in conflict with the provisions of this section.' But it seems clear that
in providing how proceedings were to be 'referred' to the Board the
congressional intent was directed toward the matters to be presented
for consideration rather than the time or manner of giving jurisdiction.
Until otherwise decided by the courts we cannot conclude that the
Board's established procedure and awards regarding the institution of a
proceeding by the filing of notice of intention is in conflict with the
Railway Labor Act."
Other awards have so followed this opinion. See especially Award
2342 of
the Second Division involving this same Carrier.
Third: The Carrier has contended that because the Signalmen were also
involved in this dispute this Division had no jurisdiction to act unless the Signalmen were also served and allowed to appear. This issue is however moot in that
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the Signalmen were given the right to appear on June 6, 1951 and declined to
exercise this opportunity.
As to the merits this is a scope rule case. The Maintenance of Way Employes contend that the work of constructing and assembling battery box racks
is work reserved exclusively to them and that the Carrier violated their Agreement by allowing employes under the Signalmens Agreement to do the work.
While the Scope Rule is ambiguous and only lists positions, this Division has
held that custom and tradition on a particular Carrier determines the work
governed by the Scope Rules. Carriers own correspondence verifies the fact
that this work has been reserved exclusively to the Organization.
The letters between the Division Engineer and another member of the
Carrier are reproduced herein to document this position.
"Denison-November 1, 1956
959
"SUBJECT: Construction of Signal Boxes
by B&B Shop, Denison
"Mr. J. E. Foster:
"General Chairman Jones has made formal complaint reference
certain work in connection with building Signal Department battery
boxes which we are handling on shop orders, leaving a portion of the
construction work to be done by Signal Department employes which,
it is contended, has formerly been handled by B&B men.
"We are asked for a statement giving all the facts in detail. Please
let me have a letter accordingly giving me full information in such
shape that our personnel department at Dallas can readily understand
the entire matter.
/s/ E. T. Lytle"
Reply to the last quoted letter was as follows:
"Denison -November 4, 1956
959
"SUBJECT:
Construction of Signal Boxes
by B&B Shop, Denison
"Mr. E. T. Lytle
"Yours above file and subject, for as long as this class of material
has been required by the signal Dept, the B&B Shop has constructed
them for the past few years a lot of them,
"Grates is made up of lx2 strips cut from 12" to 30" long and
nailed to gather making a Grate to go in concrete box for the batteries
to set on and as I said verious sizes,
"Frost lids is made up usely of 1x6" flooring cut to a length from
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24" to 30" od length and nailed to gather with cleats making a frost lid
that fits just in side of these concrete boxes,
"Terminal boards are 1x4" cut to length and fastened in side of
these concrete boxes to hold up the frost lids,
'Gun boats lids are made up to 2x4" frames covered with 1x6
flooring and galvenized iron cut and shaped to fit over the lids and
these lids cover the concrete boxes.
"Mr. Woods, Signal Engineer called me some time ago to ask me
to get them out some of this material in long length and that the signal
department was going to cut them to length required and nail them to
gather, and that is why this question was raised, by the B&B forces.
"I am passing to you a few of the Shop Orders I have filled in the
past year or two will give you some iday of what it amounts to, trust
this information such that you fuly understand it all,
"I should like to have these Shop Orders back soon as the accounting Dept, calls on us very often and we have to refer back to them
(Emphasis ours)
Is/ J, E. Foster"
The Carrier also contended in its submission that it was completely conjectural on the part of the Organization that this work was ever carried out by
the Signalmen. Again, however, we find that the Asst. Personnel Manager
stated that the particular work was done by the Signalmen.
In a letter of June 15, 1956 he stated:
"MISSOURI-KANSAS-TEXAS
RAILROAD COMPANY
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS
"A. F. Winkel
Assistant General Manager "Dallas 2, Texas-June 15, 1956
E. J. HAMMANN
Director of Personnel 2579
"Mr. E. Jones,
General Chairman,
Brotherhood of Maintenance of Way Employee,
Post Office Box 433,
Denison, Texas.
"Dear Sir:
"Referring to your letter of February 21, 1956, file 300-245-C,
appealing claim of furloughed B&B Mechanic H. H. Harvey for 50
hours' time at B&B Mechanic's rate of pay, which matter was discussed in conference June 12, 1956:
"Your were advised in conference June 12, 1956, that the Brotherhood of Railroad Signalmen of America had claimed the work of constructing battery box racks and for this reason, the timbers were
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ordered ripped to size and left uncut for future assembling by Signal
Department forces of the battery box racks.
"For these reasons and reasons given you in our letter of March 9,
1956, and other correspondence, we reiterate declination of the claim
contained in our letter to you of March 9, 1956.
"Yours very truly,
"/s/ A. F. Winkel"
The Carrier further contends that there is no showing that 50 hours of
time were spent in building these battery racks. In light of the fact that the
Carrier has admitted that these racks were built, it behooves the Carrier to
mitigate its own damages. The Organization is in no position to know the
number of hours that were involved and obviously could only estimate from
its own experience.
Finally, the Carrier Member of the Board has called attention to Article V,
Section 3, of the National Agreement of 1954 dealing with the question of time
limits for processing grievances. The Argument of the Carrier Member is an
excellent one and had it been raised on the property would have brought about
a different disposition of this case. However, not having been raised on the
property and being analogous to a statute of limitations it is deemed waived
as it is procedural and not jurisdictional. (See Award 9578)
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 Employer involved in this dispute are respectively
Carrier and Employer 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 the Agreement has been violated.
AWARD
Claim sustained as per Opinion.
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 18th day of September 1961.