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 Carrier violated the effective Agreement when it assigned the work of cleaning coal cars at P & M Coal Company near West Mineral, Kansas to outside forces.
(2) a. Section Laborers D. C. Sine, S. A. Thomas and A. M. Martin each be allowed pay at their respective straight-time rates for an equal proportionate share of the total man-hours consumed by outside forces in performing the work referred to in Part (1) of this claim for each day of this Agreement 71 lation except that;
b. For such day or days on which there is or are a section laborer or section laborers furloughed on the Roadmaster's district involved, the monetary payment shall be made to the senior section laborer furloughed on each of such days.
EMPLOYES' STATEMENT OF FACTS: Cars placed by this Carrier for coal loading at the P & M Coal Company, West Mineral, Kansas, must be cleaned of all foreign material and it is the Carrier's obligation and responsibility to have such cars cleaned. For over a period of thirty (30) years, this work has been assigned to and performed by the Section Laborers of Section No. 165, at West Mineral, Kansas.
On or about March 16, 1956, the work of cleaning coal cars by Section Forces at this point was discontinued; the work thereafter being assigned to an individual named C. F. Curtis, Nvith whom the Carrier had contracted for the performance of such work; the Carrier agreeing to pay him One Dollar ($1.00) for each car cleaned.
Effective April 2, 1956, the Carrier abolished Section No. 165 at West Mineral, Kansas and, in consequence thereof, employes formerly assigned at that point were forced to exercise their seniority rights and/or assume the status of furloughed employes.
The railroad requests ample time and opportunity to reply to any and all allegations contained in submission and all pleadings of the employe or employes 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 and 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 and Missouri-Kansas-Texas Railroad Compny of Texas all other relief to which they or either of them may be entitled.
OPINION OF BOARD; The Employes state that cars placed by this Carrier for coal loading at the P & M Coal Company, West Mineral, Kansas, must be cleaned of all foreign material and it is the Carrier's obligation and responsibility to have such cars cleaned. For over a period of thirty (30) years this work has been assigned to and performed by the Section Laborers of Section No. 165, at West Mineral, Kansas.
On or about March 16, 1956, the work of cleaning coal cars by Section Forces at this point was discontinued; the work thereafter being assigned to an individual named C. F. Curtis, with whom the Carrier has contracted for the performance of such work. Effective April 2, 1956, the Carrier abolished Section No. 165 at West Mineral, Kansas, and in consequence thereof, the Employes formerly assigned at that point were forced to exercise their seniority rights and/or assume the status of furloughed Employes.
The Carrier states that cleaning cars is work performed by various classes of persons, such as, shippers, shippers-laborers, agents, clerical Employes, shop craft Employes, laborers, contractors and others. The work has not been contracted to forces covered by the Maintenance of Way Agreement and it was proper for the Carrier to change the manner in which it was having cars cleaned at West Mineral.
The Carrier further contends that the Organization has violated the requirements of Article 5, Section 1(a) of the August 21, 1954 Agreement in that they have failed to name the Employe or Employes involved in the claim and therefore there is no valid claim before this Board.
The Agreement of August 21, 1954 is procedural in nature and the Carrier did not raise the point of not naming Employes in the claim on the property. It was not raised by the Carrier until it submitted its submissions to this Division. Article 5, Section 1(a) of the August 21, 1954 Agreement being procedural in nature and not having been raised by the Carrier on the property cannot be considered by this Board. However, the identity of the Claimants, though not specifically mentioned, is readily ascertainable.
The same basic issues are involved in this claim as were involved in Docket MW-9186, arising on the same property between the same parties and which resulted in affirmative Award No. 9849.
this claim as to the work of cleaning coal cars at the P & M Coal Company near West Mineral, Kansas.
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 Divsion of the Adjustment Board has jurisdiction over the dispute involved herein; and
DISSENT TO AWARDS 10195 AND 10196,
DOCKETS MW-9328 AND MW-9329
The majority in Awards 10195 and 10196 purport to grant the exclusive right to Maintenance of Way Laborers on the Missouri-Kansas-Texas to the cleaning of coal cars under a general scope rule which lists classifications of employes, but is silent as to the work embraced within such classifications.
The proper basis for determination as to exclusivity in such cases is past practice, custom and usage on a systemwide basis since the Agreement is systemwide in its application. The claim in each of these dockets was to the work of cleaning coal cars at two named points on the railroad, i.e., West Mineral, Kansas in Award 10195, and Checotah, Oklahoma in Award 10196. It is fundamental that the burden of proof as to past practice rests on the claimant.
In both of these Awards, the burden was on the Organization to prove past practice on a systemwide basis if it were to prevail. In neither case did it meet this burden. It rather alleged a past practice at the local points involved, which the Carrier did not challenge and which the majority accepted as proof necessary to sustain the claims. The Carrier asserted a systemwide past practice of having agents, clerical employes, Shop Craft employes, shippers and contractors clean coal cars. This assertion the Employes did not challenge or disprove. If the same reasoning is to be applied to both parties, then the Carrier must be said to have proved a systemwide past practice that the work involved was not exclusive to any one craft since their assertions were not denied or disproved by the Organization. Since systemwide past practice is the proper criterion, the majority has adopted the wrong proof as controlling. 10195-27 705
These Awards wrongfully deny to the Carrier the unsurrendered prerogative of managerial discretion as to using various classes of employes and outsiders in the cleaning of coal cars. The Awards improperly write a new rule to which the Carrier has never agreed, drastically restricting it to the use of Maintenance of Way Laborers only in cleaning coal cars.
The two claims here, as well as that involved in Award 9848 which the majority refers to with approval, are themselves further evidence of the Carrier's contention that other than Maintenance of Way forces have been traditionally used for this work.
The work here involved is peculiar to no craft by its very nature, and to hold it the exclusive province of Maintenance of Way Laborers in the absence of a rule so granting it, or past practice over the entire system so recognizing it, is to commit error of a most serious kind.