THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen on the Louisville and Nashville Railroad Company that:
EMPLOYES' STATEMENT OF FACTS: The claimants in this dispute, Messrs. J. T. Bass and C. Webster, are the assigned Signal Maintainer and Signal Helper, respectively, on the Falmouth, Kentucky, signal maintenance territory. On January 14, 1959, Mr. Bass was informed that signals 201 and 202, which are on his territory, were stopping trains. Upon investigation, Mr. Bass discovered that persons who hold no seniority or other rights under the Signalmen's Agreement were required and/or permitted to use a shunt wire to cause signal 202 to display "stop", and to remove a derail to cause signal 201 to display a similar indication.
Under date of January 17, 1959, Mr. J. T. Bass, Local Chairman, presented the following claim to Mr. Frank Hacker, Signal Supervisor:
As previously stated by carrier, it has been the practice for many years on this railroad for officials to make efficiency tests which include the use of a shunt wire placed across the rails or by throwing a derail in making automatic block or interlocking signal tests, which has never been recognized as signal work.
Carrier submits it is apparent from the foregoing that the Traveling Engineer and Assistant Trainmaster applying a temporary shunt wire on the track and throwing a derail for the purpose of making an efficiency test, does not constitute carrier assigning or otherwise directing generally recognized signal work to persons not covered by the signalmen's agreement, in violation of the agreement, as contended by the employes.
It is also apparent that the shunting of a circuit by use of a temporary shunt wire or by throwing a derail does not constitute "work" reserved exclusively to employes covered by the signalmen's agreement.
It is, therefore, obvious there is no basis for the claim, contractually or otherwise, and that same should be declined.
OPINION OF BOARD: On January 14, 1959, a Traveling Engineer and an Assistant Trainmaster, neither of whom are covered in the Signalmen's Agreement, were making efficiency tests in the vicinity of Morning View, Kentucky. They caused signal 202 to display a stop by a standard shunt wire placed across the rails ahead of the signal and they caused signal 201 to display a stop by removing the derail ahead of the signal thus shunting the track.
The identical issue, between the same parties, and involving the same Agreement was considered by this Division in Awards 11507 and 11508. We sustained the claims. In Award 11507 we said: 12627- 11 146
Award 11595, a comparable dispute on the same property, is not applicable. In that claim the track circuit was shunted by Maintenance of Way employes who were using a Matisso Tamping Machine to tamp ballast on track in area where automatic signals were located. The wheels of the machine caused intermittent change of signals. To avoid this the Maintenance of Way employes placed a temporary shunt wire between the rails. We distinguished the facts involved in Award 11595 from those in Awards 11507 and 11508 and we said:
Award 5428 is also not applicable for the same reason. In that case Maintenance of Way employes placed a temporary shunt on a track circuit while they removed a cribbing machine.
The Traveling Engineer and the Assistant Trainmaster are supervisory employes. They were engaged in making efficiency test. They were not engaged in track work which necessitated temporary shunting of a signal system circuit. In shunting the signal circuit for eficiency test purpose, they violated Rule 1-Scope.
FINDINGS: The Third Division of the Adjustment Board, 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
CARRIER MEMBERS' DISSENT TO AWARD No. 12627
DOCKET SG-12002
Our dissent to Awards 11507 and 11508 is equally applicable here and, by reference, is made a part of this dissent.
Two wrongs do not make a right. We are fully aware of the principle that, unless palpably wrong, this Board is never warranted in overruling, in a subsequent dispute between the same parties, a previous award construing the identical provisions of their contract. The decision in Awards 11507-8 is clearly wrong, and the Board in this Award 12627 should have so found rather than perpetuate pernicious error.
The error of the majority's finding that carrier violated Scope Rule 1 is plainly demonstrated by their conclusion that denial Award 11595, involving a comparable dispute between the same parties, is not applicable. It should be obvious that, if the use of a temporary shunt cable between the rails does not violate Scope Rule 1 of the Signalmen's Agreement when applied by M. of W. track employes in the performance of their M. of W. work, then it does not violate the rule when Trainmasters use the same standard shunt cable in performing their work of conducting efficiency tests. It is the duty and responsibility of division officers to test the efficiency of train and engine service employes in observing carrier's operating rules, and in doing so they are not testing or inspecting signals.
The fact is that Scope Rule 1 does not include the application of temporary shunt cables between rails as signal work. We have already seen that application for the sole purpose of conducting efficiency tests has nothing to do with the construction, installation, repair, inspecting, testing or maintenance of signals-nor can it be said to be generally recognized as signal work. Thus, the burden was on petitioner to show that such work is reserved exclusively to signal employes through historical practice, custom and tradition on the L&N system. The evidence clearly indicated that no such practice of exclusive performance exists.