NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
John J. McGovern, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILROAD SIGNALMEN
SOUTHERN PACIFIC COMPANY
(Pacific Lines)
STATEMENT OF CLAIM: Claim of the
General Committee of
the
Brotherhood of Railroad Signalmen on the Southern Pacific Company that:
(a) The Southern Pacific Company violated the current Signal.
men's
Agreement effective April
1, 1947 (reprinted April 1, 1958,
including revisions), particularly the Scope Rule and Rules 16 and 70.
(b) Mr. L. G. Hamilton be paid four and one-half (4shz) hours
at his
overtime rate
of pay for each of the following dates: February 27, 28, March 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16 and 17, 1961.
(c) Mr. L. S. Bailey, Assistant Signalman, be paid the difference between his Assistant Signalman rate of pay and that of Signalman for each of the following days for eight (8) hours each:
February 27, 28, March 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16 and 17,
1961, and four and one-half (4h) hours at the Signalman overtime
rate on March 3, 6, 7 and 8, 1961.
(d) Mr. T. W. Eaves be paid the difference between his Assistant Signalman rate of pay and that of Signalman for eight (8) hours
on each of the following dates: March3, 6, 7 and 8, 1961.
(e) Mr. R. J. Rogers, furloughed Assistant Signalman, be paid
eight (8) hours at his rate of pay for each of the following dates:
February 27, 28, March 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16 and 17, 1961.
(f) Mr. J. Jordan, furloughed Assistant Signalman, be paid
eight (8) hours at his rate of pay for each of the following dates:
March 3, 6, 7 and 8, 1961. [Carrier's File: SIG 152-93; S-97-21-105]
EMPLOYES' STATEMENT OF FACTS: This dispute is a result of
the Carrier's action of assigning track forces instead of signal forces to
provide flag protection at highway-railroad grade crossings at which automatic highway crossing protection devices had been installed. Highway cross-
[7031
13147-9
711
In view of the above, no doubt whatever should exist as to the propriety of using Maintenance of Way employes for flagging crossings whenever
in the judgment of Carrier's supervisory personnel it is the better way to
get the job done.
This claim is obviously an attempt on the part of Petitioner to secure
for Signal Department employes through an Award of this Division an
exclusive right to perform any and all crossings flagging at any crossing
where there is an automatic crossing protection device if for any reason
manual flagging of said crossing is required. Conclusive evidence thereof is.
the fact that within the last year, Petitioner has appealed to this Division
from this property a series of 5 claims, including that in this Docket, having
as their basis that very issue. The other four claims appealed to this Division
carry the following organization file numbers: NRAB-1058 -Southern Pacific, NRAB-1156-Southern Pacific, NRAB-1157-Southern Pacific, and
NRAB-1201 -Southern Pacific.
Both Signal Department and Maintenance of Way employes have always
been used for crossing flagging on this property, and there have never been
firmly defined lines agreed upon with respect to when one or the other of
those crafts will be used. The determination as to by whom crossing flagging will be performed on this property has always been a prerogative of
management which has been exercised harmoniously for many, many years.
In the above situation the principle enunciated in Award 8755, denying
that claim, applies here. The following excerpt from this "Board's Opinion"
in that case clearly reflects the analogy:
"Thus it appears that the work in question, not being exclusively
allocated to the claimant in the scope section of the contract, and of
a type performed by others in the past, is work which in the discretion of the Carrier, may be awarded to either class. The discretion to
be exercised in the public interest."
Insofar as the claim for overtime rate is concerned, if there is any basis
for claim submitted, which Carrier denies, nevertheless, the contractual right
to perform work is not the equivalent of work performed. That principle is
well established by a long line of awards of this Division, some of the latest.
being 6019, 6562, 6750, 6854, 6875, 6974, 6978, 6998, 7030, 7094, 7100, 7105,
7110, 7138, 7222, 7239, 7242, 7288, 7293, 7316, 8114, 8115, 8531, 8533, 8534,
8568, 8766, 8771, 8776, 9748 and 9749. In addition, the claim for 8 hours' pay
for four of the claimants on dates of March 3, 6, 7 and 8, 1961, is erroneous,
as only three grade crossings are involved, and there is no contention that
more than one Maintenance of Way employe provided flagging protection at
any one of those crossings at one time on those dates.
CONCLUSION
The claim in this docket is entirely lacking in merit or agreement support, and carrier requests that it be denied.
(Exhibits not reproduced.)
OPINION OF BOARD:
We find that this claim involves the same parties and question as that involved in Award No. 13143. Following our decision
in that case, this claim will be denied.
13147--10
712
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 11th day of December 1964.