NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Harold Kramer, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
CENTRAL OF GEORGIA RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the Agreement when it failed and
refused to allow Section Laborer H. Lewis pay at the Telephone
Maintainer's overtime rate for the overtime services assigned to
and performed by the claimant in performing Telephone Maintainer's
service from 7:00 P. M. on March 8, to 3:00 A. M. on March 9, 1957.
(2) Section Laborer H. Lewis now be allowed the difference
between what he was paid at the section laborer's overtime rate
and what he should have received at the Telephone Maintainer's
overtime rate for the eight hours' work referred to in Part (1) of
this claim.
EMPLOYES' STATEMENT OF FACTS:
The Claimant, H. Lewis, holds
seniority as section laborer and is employed on the section gang at Millen,
Georgia.
On March 8, 1957, after the Claimant had completed his regular tour
of duty he was instructed to perform overtime services working with Telephone Maintainer Rabitsch in the performance of his duties, between the
hours of 7:00 P. M., March 8, and 3:00 A. M., March 9, 1957.
The overtime service performed by the claimant in working with the
Telephone Maintainer was caused by "a tree on the telephone line at M.P.
146" and such service was to "cut this tree from the wire lines."
The Claimant was paid at the overtime rate applicable to the position of
section laborer.
The Agreement in effect between the two parties to this dispute dated
September 1, 1949, together with supplements, amendements and interpretations thereto is by reference made a part of this Statement of Facts.
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OPINION OF BOARD:
Claimant H. Lewis, holds seniority as section
laborer and is employed on the section gang at Millen, Georgia. On March
8, 1957 he was instructed to perform overtime services working with Telephone Maintainer Rabitsch between the hours of 7:00 P. M., March 8, and
3:00 A. M., March 9, 1957.
A reproduction of a signed statement by Claimant regarding duties performed under date of this dispute is a follows:
"Millen, Ga., June 14, 1957
"To Whom It May Concern:
"On March 8th I was called by Telephone Maintainer C. L.
Rabitsch at 7:00 P.M. to assist him. We proceeded to the 146 M.P.
where there was a tree on the telephone line. My work consisted
of cutting this tree from the wire lines.
"/s/ Howard Lewis
Howard Lewis."
POSITION OF EMPLOYES
That work performed by Claimant while working with Telephone Maintainer, who works in the Telephone and Telegraph Department is excepted
from the provisions of the Maintenance of Way Agreement as provided
under Rule 1 of the existing Agreement.
"Scope
"Rule 1. These rules govern the hours of service, working
conditions and rates of pay of employes in the Maintenance of Way
and Structures Department, except:
"(a) Signal Department
(b) Scale Department
(c) Engineering
(d) Clerical
(e) Telephone and Telegraph Department
(f) Supervisory forces above the rank of foreman."
That Claimant holds seniority in the Track sub-department as provided
for in Rule 2. Seniority Sub-Departments.
"Seniority Sub-Departments
"Rule 2. Seniority rights of all employes will be confined to
the sub-departments which employed, except as provided in rules
3(c), 31 (b) and 33 (a-2). Sub-departments are defined as follows:
"(a) Track
(b) Bridge and Building
(c) Plumbing
(d) Rail Welding
(e) Water Supply
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321
(f) Coal Chutes and Locomotive Fuel
Oil Station Employes
(g) Tinners
(h-1) Roadway Machines
(h-2) Crawler-mounted Shovels, Draglines,
Bulldozers, Tournapulls and Steam Ditchers
(i) Iron Bridge
(j) Camp Car Cooks
(k) Paint Gang-Savannah Division
(1) Crossing Watchmen
That Carrier instructed and required Claimant to perform services of
a nature that comes within scope of another Agreement and failed to pay
Claimant in accordance with provisions of Rule 19 of the Maintenance of
Way Agreement.
"Preservation of Rates
"Rule 19. Employes temporarily or permanently assigned to
higher rated positions shall receive the higher rate while occupying
such positions; employes temporarily assigned to lower rated positions shall not have their rates reduced."
POSITION OF THE CARRIER
That this is an entirely new position of the Employes and is designed
to change the mutual past interpretation of more than 50 years duration on
this property.
That the existing Agreement does not give the Employes any contract
right to a higher rate of pay under some other schedule Agreement.
That the work of cutting down trees along the right of way of this
Carrier is not spelled out in any Agreement and that such work has been
performed both in emergency situations and non-emergency situations by
Employes covered by the Communication Workers' Agreement with the
International Brotherhood of Electrical Workers, by the Employes covered
by the Agreement with the Brotherhood of Maintenance of Way Employes
by Employes covered by the Agreement with the Brotherhood of Railroad
Signalmen of America and possibly others depending upon who is most
available.
OPINION
The facts in this case are not disputed by the parties and the cutting
down of a tree along the right of way of the Carrier is not
the exclusive
work of any craft or class of Employes. The Claimant in this case did perform work to remove a hazard to the Carrier's Communications lines and
this Board has held in Award 4077 which in part states as follows:
11.
. . Whether certain types of work belong to Bridge and
Building employes or some other craft, is dependent upon the purpose sought to be accomplished by it. If its purpose is to maintain
a bridge by removing a hazard to its safe use, it is Bridge and
Building work. If its purpose is to protect track and other facilities
maintained by section employes, the work would belong to them.
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322
Under the evidence produced in this record, we think the purpose
of the work was the maintenance and safety of the bridges. This
makes it Bridge and Building work. This being true, claimants are
entitled to pay under Bridge and Building rates as provided by Rule
32, current Agreement."
This Board has similarly ruled in Awards 1544, 2513, 2169 and in many
others.
The Organizations makes claim in this case for overtime work at overtime rate for the Claimant at the rate of pay that a Telephone Maintainer
would have received but does not present any evidence that the work of
cutting down a tree is normally performed by a Telephone Maintainer. The
Carrier contends that work performed by Claimant Section Laborer Lewis
is more like that of the Groundman under the I. B. E. W. Agreement.
Since the burden of proof normally rests upon the Petitioner, we find
for the Claimant to the extent of time and a half at rate received by Groundman under the I. B. E. W. Agreement less the amount already compensated
as section laborer for work performed in this dispute as provided in Rule 19
of the current 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
That the Agreement was violated.
AWARD
Claim sustained to the extent specified in Opinion.
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.