THIRD DIVISION
(Supplemental)
GEORGIA SOUTHERN AND FLORIDA
RAILWAY COMPANY
(1) The Carrier violated the effective Agreement when, on July 30, 1960, it permitted an assistant division engineer, a track supervisor and an assistant track supervisor to perform the usual and customary work and duties of track foremen and track laborers.
(3) Because of the violations referred to above, the Carrier now be required to allow the claim as was presented in a letter reading:
EMPLOYES' STATEMENT OF FACTS: The Claimant employes are regularly assigned to work on Mondays through Fridays, with rest days of Saturdays and Sundays. They are regularly assigned to and held responsible for properly maintaining and repairing tracks on this Carrier's property and are generally used to assist in the recoiling of cars or locomotives which become derailed.
On Saturday, July 30, 1960, two diesel units were derailed on the Adel Warehouse track. Assistant Division Engineer Hall, Supervisor Goodman, Assistant Supervisor Byars and Track Laborers Henry Napper and Tommie Jackson were used to help rerail the Diesel units and to make necessary repairs to the tracks. In addition to assisting in the aforementioned work, the Assistant Division Engineer, the Supervisor and the Assistant Supervisor also supervised and directed the two track laborers in performing the aforementioned work. The Claimants were available but were not called.
Consequently, claim was presented as set forth in Statement of Claim and it was declined in a letter reading:
fit. For wrecks and derailments within the yard limits sufficient carmen will be called to perform the work if their services are needed."
If the Board has any notion of giving serious consideration to the contention made by the Brotherhood's General Chairman, then employes of the carmen's class or craft would be involved in the dispute within the meaning of Section 3 First (j) of the Railway Labor Act reading:
In this connection, however, Carrier emphatically denies that any of the persons named by the Brotherhood's General Chairman helped rerail the two derailed diesel-electric locomotive units. In fact, as heretofore shown, the diesel-electric locomotive units were rerailed by 3:00 P. M., and the two track laborers called and utilized in making repairs to the damaged track were not called until 4:00 P. M. They were, therefore, not in the immediate vicinity of the derailed locomotive units when they were rerailed.
The evidence of record is crystal clear that the effective agreement was not violated as alleged by the Brotherhood and that the claim is without basis.
The above expressed conclusions under (a), being fully supported by prior awards of the several Divisions of the Board, claim should be dismissed by the Board for want of jurisdiction. However, if, despite this fact, the Board assumes jurisdiction, it cannot do other than make a denial award, for an award of any other type would be contrary to the effective agreements.
OPINION OF BOARD: The issue in this case is whether an unassigned track foreman and three Maintenance of Way Laborers should be paid at overtime rates for certain track repair work actually performed by two regular laborers on a Saturday, a rest day for these employes. 12844-27 447
The essential facts are that two diesel units which had been derailed were rerailed by Mechanical Department forces; and, within a three-hour period, three rails in the track were re-spiked and guard rails adjusted by two track laborers who were regularly employed by the Carrier. All of this work was done under the supervision of management personnel.
Employes first based their claim on the work done to re-rail the engines and repair the track. Later, the claim was limited to the repair work. With respect to this work, the Employes maintain that it is traditional in the railroad industry for a foreman to direct and supervise the work of others and that, accordingly, it was not proper for the Carrier's officials to perform foreman's work. As for the track laborers, the Employes contend that the Claimants should have been called because they held greater seniority than the track laborers who were called.
The Carrier's position is that management reserves the right to use track foremen for rail repair work of this kind and that in this case a foreman was not required. Further, the Carrier maintains that since it called two regularly employed track laborers instead of unassigned employes, it had satisfied the requirements of the Laborers' Agreement.
In our opinion, the Carrier violated the Foreman's Agreement when it did not call a track foreman to supervise the work of the track laborers who repaired the track and guard rails. The Carrier, however, did not violate the Laborers' Agreement under these circumstances.
Although the Scope Rule for Foremen does not describe work, it is well established that work content for employes covered by the Agreement is determined by the work such employes customarily do. It is the very essence of track supervision that a foreman be on the job. See Award 8849. Except in unusual circumstances, not present here, such track supervision work cannot be performed by management. Therefore, the Carrier violated the Agreement when it used management officials to supervise the track repair work and did not call a track foreman to supervise the work of the laborers.
The Carrier was under no obligation to call Claimant laborers, however. All of these laborers were unassigned. The rules on work on Unassigned Days is that the Carrier may use available extra or unassigned employes who will otherwise not have 40 hours of work in a week. It could, however, as it did here, elect to use regular employes, where work is required by the Carrier to be performed on a day which is not part of any assignment, and pay the penalty overtime rate. Therefore, the Agreement as to the Claimant laborers was not violated.
The Employes and the Carrier discussed at length in the record before the Hoard the procedural question whether the claims should be sustained because of the Carrier's admitted failure to give reasons for denying the claims, as required by Article V of the August 21, 1954 Agreement. The Em, ployes' contention that the claims should be so sustained was not advanced in the latter stages of this proceeding in recognition of recent awards (relied on here) which hold that rights under Article V are procedural and not jurisdictional in character and if not asserted on the property, as they were not asserted here, such rights are waived. Awards 10684 and 11178 and Second Division Award No. 3858. Accordingly, Employes' position that the claim should be sustained by reason of Carrier's failure to observe the requirements of Article V of the 1954 Agreement should be denied. 12844-28 448
Another procedural question raised by the Employes in this proceeding is whether the time claim of the foreman and three Maintenance of Way Laborers for the track repair work should be sustained because-it is alleged by the Employes-the highest official designated to act on claims defended against the claim for re-rail work only, and, consequently, abandoned any defenses Carrier may have had against the track repair work.
Aside from the matter that this contention could not be sustained because it was not raised on the property, it cannot be sustained because the Carrier did not, in fact, abandon its defenses against the time claim for the rail repair work.
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
The claim is sustained only with respect to the time claim of Track Foreman H. F. Mullis. It is denied as to the other Claimants.