NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Preston J. Moore, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
THE CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC
RAILWAY COMPANY
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 renewing and rebuilding roadway crossings
north of Milepost 79 beginning on or about July 25, 1956 to Parson
and Marksberry, Contractors.
(2) Extra Gang Foreman W. G. Phillips, and extra gang
laborers C. H. Singleton, W. Allison, C. Trinkner, H. Trinkner, J.
Norwood, J. Ashton, C. Gooch and B. Huley each be allowed pay at
his respective straight time rate for an equal proportionate share of
the total number of man hours consumed by the Contractor's forces
in performing the work referred to in Part (1) of this claim.
EMPLOYES' STATEMENT OF FACTS:
The position of Extra Gang
Foreman is encompassed within the Scope of the Agreement between the
parties commonly referred to as the "Foremen's Agreement", whereas the
position of Extra Gang Laborer is encompassed within the Scope of the
Agreement between the parties commonly referred to as the "Laborer's
Agreement."
Beginning on or about July 25, 1956, the work of paving the crossings
north of Milepost 79 was assigned to and performed by a General Contractor
whose employes hold no seniority rights under the provisions of this Agreement.
The work consisted of the removal of the old crossing, of then applying
and spreading an asphalt mixture and the rolling thereof with a roller and
other work incidental thereto.
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CONCLUSION
Carrier has proven that:
(a) Claim is vague and indefinite and does not specify the
amount which the Brotherhood here seeks to exact from the Carrier;
(b) The effective Maintenance of Way Agreements have not
been violated as alleged. To the contrary, they have been complied
with to the letter. The Carrier has not contracted away its right
to assign the work.
(c) Paving streets, highway and road crossings is not work of
the character usually, customarily or traditionally performed by
maintenance of way employes. To the contrary. It is work of the
character usually, customarily and traditionally contracted.
(d) Claims identical in principle have heretofore been denied
by prior awards of the Board.
(e) Prosecution of the claim constitutes an effort by the
Brotherhood to create work and establish new rules and conditions
of employment for maintenance of way employes. But the Brotherhood conceded that point in making the proposal in its Section 6
notice of May 22, 1957.
Claim, being an absurdity and without any basis whatsoever and unsupported by the plain language of the Agreements in evidence, cannot be
sustained by the Board. A denial award is clearly, therefore, in order.
All evidence here presented by Carrier is known to employes' representatives.
Carrier, not having seen the Brotherhood's submission, reserves the right
after doing so to make reply thereto.
(Exhibits not reproduced.)
OPINION OF BOARD:
This is a dispute between The Brotherhood of
Maintenance of Way Employes and Cincinnati, New Orleans and Texas Pacific Railway Company.
On or about July 25, 1956 the Carrier contracted the work of paving
the crossings north of Milepost 79 to a private contractor. The work consisted of the removal of the old crossing, of then applying and spreading
on asphalt mixture and the rolling thereof with a roller.
Award 10715 is squarely in point and on the same property. The
opinion expressed therein rules on the issues presented in this dispute. We
must follow the doctrine of "Stare Decisis."
Although we might disagree with parts of the opinion in Award 10715,
we are not prepared to declare the award to be palpably wrong. Therefore
we find the Agreement was not violated.
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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 not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 14th day of February 1963.