NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
SOUTHERN PACIFIC COMPANY
(Pacific Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the effective Agreement when, from March 12 through March 19, 1959, it used Bridge and Building Carpenters and helpers who hold no seniority in the class of painters, to perform painting work on the Eye Street Drawbridge at Sacramento, California, instead of using employes holding seniority in the class of painters.
(2) Painter Foreman Page Rodems and Painters Thomas E. Hunter, Louis Arello, Woodrow P. Howe, Nils L. Parsons, Hubert B. Wilson, Jack A. Price, George W. McClendon, William B. Roy, L. E. Mowry and Victor L. Vesely each be allowed pay at their respective straight time rate for an equal proportionate share of the total manhours consumed by the Bridge and Building carpenters and helpers in performing the painting work referred to in Part (1) of this claim.
EMPLOYES' STATEMENT OF FACTS: The Claimant Painter Foreman and Painters have established and hold seniority as such on the Carrier's Sacramento Division.
During the period from March 12 through March 19, 1958, the Carrier assigned and used Bridge and Building Carpenters and Helpers assigned to B&B Gang Number 3, who hold no seniority rights in the class of painters, to use painter's equipment in performing painting of fire proofing on the ties in the east bound track on the Eye Street Drawbridge at Sacramento, California.
The work consisted of applying primer and zone with four knot brushes on the structure in question.
Both B&B carpenters and helpers and B&B painters and helpers are in the same sub-department. This Board, in BofMWE v. SP, Award 6705, ruled that the Scope Rule and Rule 4 are not involved in a case where two different classes in the same sub-department claim work. That Award states in part:
Rule 27 is not involved as no new positions were created, nor should any have been created.
It will be observed that from an agreement standpoint, carrier was fully within its rights in using employes of B&B Sub-department as was done in this case.
Not only was Carrier fully within its rights under provisions of Rules 1, 3 and 4, but practice followed in this case conforms to practice followed in the past, as has been indicated above.
All data herein submitted have been presented to the duly authorized representative of the employes and are made a part of the particular question in dispute.
OPINION OF BOARD: Incident to replacing ties, carpenters and helpers of the Bridge and Building Sub-department "fire proofed" the ties. The "fire proofing" consisted of brushing the ties with a product of asphalt-like consistency, and applying rock chips to such adhesive substance.
The ultimate question is whether the Agreement reserves to the painter class in the Bridge and Building Sub-department a right to do such work exclusive of the carpenter and helper class in the same Sub-department.
Letters included in Employes' Ex Parts Submission, dated after Carrier's final denial of the claim, could not have been made a part of the dispute while the claim was being handled on the property. Such letters are excluded from our consideration. See Circular No. 1 of this Board and Award No. 11128 (Boyd). Letters attached to Carriers Ex Parts Submission are excluded from our consideration upon the same grounds.
The work of painters and carpenters is not defined in the Agreement; neither is work assignable to the two classes made mutually exclusive. Where a class claims the benefit of the exclusive right to certain work, and such benefit is not expressly conferred by the Agreement, that class has the burden 11956-12 261