STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: The claimant holds seniority right as a Sectionman in Group 14 of the Track Department.
For a period of more than thirty-five years, the work of supplying cabooses at Missoula, Montana was assigned to and performed by Sectionmen holding seniority in Group 14.
Beginning on October 17, 1960, the Carrier unilaterally assigned the work of supplying cabooses to Car Department employes who hold no seniority under the provisions of this agreement.
The Agreement violation was properly and timely protested and claim filed in behalf of the claimant and progressed through all stages of appeal up to and including the Carrier's highest appellate officer.
The Agreement in effect between the two parties to this dispute dated April 1, 1952, together with supplements, amendments, and interpretations thereto is by reference made a part of this Statement of Facts.
Additional awards recognizing the principle that the penalty for improperly removing work from the scope of an agreement is the number of hours of work removed from the agreement computed at straight time rate are Nos. 3061, 3193, 3232, 3488, 3587, 3745, 3955, 4244, 4467, 4760, 5782, 5841, 5950, 5952, 6760 and 8534 of this Division.
As before stated, the length of time consumed by carmen in supplying cabooses between the hours of 8:00 A. M. and 5:00 P. M. from Monday through Friday did not exceed two hours. Therefore, applying the principle propounded by this Division in cases where work has been improperly removed from an agreement, the penalty accruing would be payment at straight time rate for the length of time consumed by carmen in supplying cabooses.
1. The work of supplying cabooses is insufficient to warrant the establishment of a position primarily for that purpose.
2. The work of supplying cabooses is performed by employes incident to their regular duties.
3. The work of supplying cabooses at Missoula has never been recognized as the exclusive work of Track Department employes.
4. Universally the work of supplying cabooses is not recognized as the exclusive work of any particular class of employes.
5. Track Department employes did not supply cabooses at Missoula prior to October 17, 1960 on Saturdays and Sundays.
6. Not to exceed two hours per day from Monday through Friday is consumed by carmen in supplying cabooses at Missoula.
Based upon the facts, the rules of the April 1 1952 Agreement and the practice thereunder, the claim covered by this docket should be denied in its entirety.
OPINION OF BOARD: Employes argue that a more than thirty-five year practice at Missoula, Montana, of Sectionmen covered by the Agreement being assigned the work of supplying cabooses, reserves such work at Misponds to employes covered by the Agreement. Employes rely on Rule 1, Rule 2 and a supplemental letter Agreement dated February 11, 1952.
The work of supplying cabooses is not referred to in any of these or any other rules in the Agreement; nor can it even be found in the job titles by ;inference. Employes rely entirely on past practice to establish title to the involved work. But the record shows conclusively that the practice both on the system as a whole (which Carrier argues is the proper reference), and at 13282-22 875
Missoula alone (which Employes claimed originally as the reference), was to assign the involved work to employes covered by Agreements of a number of different crafts. Even if the area of reference for the consideration of practice were narrowed still further, as later argued by Employes, to a majority of time an one particular five day position, Employe's evidence falls short of proving the practice conclusively. We shall therefore deny the claim.
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