Award No. 10860
Docket No. MW-9879
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Harold Kramer, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brother that:
(1) The Carrier violated the effective Agreement beginning
with January 4, 1954, when it assigned the work of icing, salting and
heating refrigerator cars at Estherville, Iowa to other than its Track
Department employes at that location.
(2) Section Foreman E. E. March and Sectionmen James
Hansen, Glen Dahna and Glen Fisher each be allowed pay at their
respective straight time rates for an equal proportionate share of the
total man-hours consumed by other employes in performing the work
referred to in part (1) of this claim since January 4, 1954.
EMPLOYES' STATEMENT OF FACTS:
On this property, the work of
icing, salting and heating refrigerator cars at Estherville, Iowa has, since
before 1916, been assigned to and performed exclusively by the Carrier's
Track Department (Section) employes at that location.
Nonetheless, under date of December 31, 1953, instructions were issued
by the Carrier that effective Monday, January 4, 1954, the aforementioned
work would be taken over and thereafter performed by its clerical employes,
who hold no seniority rights under the provisions of this Agreement.
Consequently, under date of April 1, 1954 the undersigned General
Chairman submitted a claim in connection therewith as follows:
"April 1, 1954
File:
2-0-144
Mr. H. T. Kelso, Roadmaster
Chicago Rock Island & Pacific R.R. Co.
Estherville, Iowa
[283]
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294
work entirely foreign from track construction or maintenance work. It is,
therefore, our position that the work in question is not covered by the
Maintenance of Way Agreement.
Because the Clerks' Organization has rights under their contract
which
may be affected by a decision in this case, they should be given due notice
of this hearing as required by Section 3, First (j) of the Railway Labor Act,
which provides:
"Parties may be heard, either in person, by counsel or by other
representatives, as they may respectfully elect, and the several
divisions of the Adjustment Board shall give due notice of all hearings to the employee or employees and the Carrier or Carriers in
any dispute submitted to them."
Until such a notice is given the Clerks' Organization, this dispute is
improperly before your Board.
We respectfully refer your Board to General Chairman Cope's letter of
June 17, 1954 (Carrier's Exhibit "D"), particularly the second to last paragraph.
For the above reasons, we respectfully request your Honorable Board
to deny the claim of the employes.
It is hereby affirmed that all of the foregoing is, in substance, known to
the Organization's representatives and by this reference is made a part hereof.
(Exhibits not reproduced.)
OPINION OF BOARD:
On October 31, 1953 the Carrier issued instructions that beginning January 4, 1954, work of icing, salting and heating
refrigerator cars at Estherville, Iowa will be assigned to other than Track
Department Employes.
POSITION OF THE ORGANIZATION
That for a period of more than thirty years Track Department Employes
have performed icing, salting and heating refrigerator cars at Estherville,
Iowa and that it has been generally established by Board rulings that a long
established and recognized practice as herein would prevent any transfer
of work.
That Claimants have established and hold seniority in their respective
class and groups and that the clerks to whom this work has been assigned
hold no seniority rights under provisions of this Agreement.
Relevant portions of the seniority rule under this Agreement is as
follows:
"RULE 2 (c)
"Scope of Roster. Seniority rosters will show the name and
date of entry of the employes into the service of these railways and
date of promotion by classes, and will be separately complied for
each group by seniority districts."
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295
POSITION OF CARRIER
That this is a jurisdictional dispute. Quoting from the Record page 17
to wit.
"Under date of November 19, 1947, the Carrier received a request from the General Chairman of the Clerks' Organization that
the icing of cars at Estherville, Iowa be turned over to employees
coming under the Clerks' Agreement and that the Carrier establish
a Refrigerator Inspector and laborer positions to take care of this
work.
"This claim was discussed in conference at various times from
1947 to 1953 with General Chairman Petersen of the Clerks' Organization and in conference on January 20, 1953, the parties agreed
to settle the matter by establishing two Class 3 trucker positions
who would be assigned the duties of icing cars and any other refrigerator work necessary. (See Carrier's Exhibit "A")"
That Section men are laborers working under the direction of Section
Foremen or Yard Foremen who under Rule 2, Section 6 have charge of the
construction or maintenance of railroad track that they cannot be Employes
entitled by contract to the working of icing, salting or heating regfrigerator
cars-work entirely foreign from track construction or maintenance.
That the Employes admit in the second to last paragraph of their letter
of June 4, 1954 (Carrier's Exhibit "D") that the work involved here is
"work of other Organizations" but they refuse to relinquish it because it
was previously assigned and "until you are willing to return the Maintenance
of Way work being performed by the other crafts". This letter referred to
above dated June 17, 1954 sent to Mr. G. E. Mallery, Manager of Personnel
was signed by Jay W. Cope, General Chairman of the Brotherhood of Maintenance of Way Employes, and reads in part as follows:
' . our organization will insist on the same consideration you
give to other Organizations and we refuse to
voluntarily relinquish
the work of other Organizations previously assigned to the Maintenance of Way employees until you are willing to return the Maintenance of Way work being performed by the other crafts to employees within the scope of the Maintenance of Way Agreement.
(Emphasis Added)"
OPINION
The Scope Rules under the binding Agreement in this dispute are in
the opinion of this Board specific in that it lists the work covered. It guarantees to the Employes no rights to perform work other than specifically
covered in the Agreement, regardless of local practice. It is not alleged or
claimed by the Organization that work involved in this dispute is performed
by the Organization to the exclusion of other classes of Employes covered
by other Agreements.
There is as a matter of fact on record a letter by the General Chairman
of the Maintenance of Way Employes dated June 17, 1954 (Carriees Exhibit "D") that
the work under dispute is "work of other Organizations".
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296
It is true that Track Department Employes at Estherville, Iowa have in
fact performed work of icing, salting and heating refrigerator cars for a very
long time. We hold, however, in the instant dispute with Award 7954 which
.in part stated:
. . The argument is that the past practice at Mobridge, continuing as it did over many years, had the effect of making such
work 'related work' under the scope rule at that point. While the
Board has in many cases in which it has held a scope rule to be
ambiguous, decided the question of whether certain work falls under
the scope rule on the basis of past practice alone, we do not think
such decisions are applicable to the present case. The scope rule
involved here undertakes to describe the work covered and thus is
less ambiguous than those scope rules which merely recite positions
and leave the work done by such positions to be discovered through
a study of past custom and practice."
A pertinent position was taken in Award 7031 and with
which we
concur,
it reads in part as follows:
. . . Where work may properly be assigned to two or more
crafts, an assignment to one does not have the effect of making it the
exclusive work of that craft in the absence of a plain language indicating such an intent. Nor is the fact that work at one point is
assigned to one craft for a long period of time of controlling importance when it appears that such work was assigned to different
crafts at different points within the scope of the agreement."
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
'['list the Carrier did not violate the Agreement.
AWARD
Claim is denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 19th day of October 1962.